R v Laycock
[2019] VCC 1224
•7 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 18-00818
| THE QUEEN |
| V |
| DAVID LAYCOCK |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2019 |
DATE OF SENTENCE: | 7 August 2019 |
CASE MAY BE CITED AS: | R v Laycock |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1224 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Plea – Aggravated burglary – Intentionally causing injury – Prohibited person possessing a firearm – Spontaneous assault – Minimal relevant of prior convictions – Parity – General deterrence – Reasonable prospects of rehabilitation – Very early plea – Sentencing Act 1991 – Crimes Act 1958 – Total Effective Sentence: 306 days imprisonment and 2 year Community Correction’s Order – Hogarth v The Queen (2012) 37 VR 658 – DPP v Meyers (2014) 44 VR 486 – DPP v Bowden [2016] VSCA 283 – DPP v Calleja [2019] VCC 893, considered.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms C. Duckett | Mr J. Cain, Solicitor for Public Prosecutions |
For the Accused | Mr J. Kantor | James Dowsley & Associates |
HIS HONOUR:
1David Laycock, you have pleaded guilty to two charges of aggravated burglary[1], one charge of intentionally causing injury[2] and one charge of prohibited person possessing a firearm.[3] The maximum penalties were set out in the prosecution opening, which I incorporate by reference.
[1] Contrary to s.77of the Crimes Act 1958
[2] Contrary to s.18 of the Crimes Act 1958
[3] Contrary to s.5(1) of the Firearms Act 1996
2The circumstances of the offending were also set out in the prosecution opening, which was read in open Court yesterday and I incorporate that by reference.
3In brief outline, the offending arose in circumstances of relationship and accommodation disputes between known parties at a premises in Tullamarine. You had been in some sort of relationship with the occupier of the house and you had been living there. That relationship collapsed and shortly before the relevant offending, in September 2017, you were actually exiled to the garage and sleeping there for a couple of weeks.
4At that point you had been told you were not welcome in the house except to use the bathroom and you were certainly not welcome in the bedrooms. In fact you were making arrangements to leave the premises and obtain other accommodation.
5The first aggravated burglary arose because you had been in the garage with Ms Paige and Ms Bolt, who had been two occupiers of the house the previous night smoking ice. Everyone departed to go to bed in the early morning. At that point you ascertained that your motorbike had been stolen, this motorbike was close to your heart because you had previously lost your house about six or seven years earlier and it was the only significant possession you owned, except perhaps a car. You formed the view that a person who at that stage was involved in some sort of relationship with either Ms Paige or Ms Bolt had stolen that vehicle, and he had been staying on and off at the premises.
6After banging the shutters on Ms Bolt's window you then went into the house and confronted him. At that confrontation where you were unarmed but you went in there to confront him and demand the bike involved circumstances where you were a trespasser, in that you had been told by Ms Paige that you were not to enter the house and your motivation was to get your bike back. It was an irrational view that he had stolen the bike. The complainant, Mr Brown, seemed to be prepared for various eventualities and ended up pulling a file on you to protect himself and told you to leave. You responded, objecting to the fact that he pulled this knife or file on you. So those events constitute the first charge of aggravated burglary.
7You then went to seek out proof as to how the bike had been stolen by getting CCTV footage. Then you started to exchange mobile phone text messages with Ms Bolt, who was another occupier of the property, demanding that your motorbike be returned very quickly otherwise the complainant would be in big trouble.
8Ms Paige, the occupier of the house, was gone and when she returned she knew a Mr Russell, who happened to be at the premises, having arrived at that time. He had previously had relationship with Ms Bolt and had stayed at the premises. He was actually seeing Ms Paige about getting an iPad back that apparently was wrongly being possessed by someone else. In any event there had been some event associated with demanding an iPad back by Mr Russell previously.
9Then on the complainant's account at 3 o'clock in the morning he woke up to find someone hitting him on the leg and he was scuffling with Mr Russell in the bedroom. While he was scuffling with Mr Russell and he could feel Mr Russell punching him in the head accusing him of stealing his car, stealing a car, you then entered the bedroom with a golf club and proceeded to hit Mr Brown with the golf club. Russell was holding the complainant down while you were hitting him after you had been requested to do that by Russell.
10Ms Bolt, who had been in the shower then said that she was going to call the police and you said, 'Don't', tried to stop her, but she did that and then the matter, the fight, ended effectively after you hit him again in the back, in the right hip with the golf club and he must have been hit on the knee with the golf club and then the two of you then left the premises. Mr Russell did not get his iPad in any event.
11So the events giving rise to the second charge of aggravated burglary involved you attending into that bedroom to assist or fight with Mr Brown after the fight between him and Mr Russell had started for other reasons. You had no right to be in that bedroom because you had been told you were not allowed in the bedrooms by Ms Paige a day or so earlier.
12You then left the premises with a female, unknown, and the police were called and they found the head of a golf club on the floor in the bedroom and you were subsequently arrested about a month later.
13Mr Brown, the complainant, was taken off to the Northern Hospital and found to have a fracture, a lacerated tibia and linear wounds to his forehead. He was discharged the following day, he has not put in a victim impact statement.
14Police arrived at the premises on 4 September the next day and they search the premises, including the garage that you were occupying or what was - yes, the garage that you were occupying and they found then a sawn-off bolt action shotgun. And that gives rise to the offence of prohibited person possessing a firearm. You have pleaded to possessing that firearm on 4 September, which is the last day you were at the premises the day after the aggravated burglaries, the second aggravated burglary.
15
You in your record of interview were adamant that you never possessed that firearm, but the DNA testing indicates that it had your fingerprints on it and
Mr Brown was excluded. So the firearm, you have pleaded guilty to possessing that firearm. At the time you had an intervention order against you by your
ex-partner, Ms Withers, and that gives rise to you being a prohibited person.
16The prosecution accepts that the firearm was not possessed by you as part of any criminal enterprise or continuing criminal enterprise and so Ms Withers had nothing to do with your, effectively, deemed possession of the firearm.
17In your record of interview you indicated that you were opposed to firearms, you were not involved with firearms, but you did admit that you had been pig shooting or you went pig hunting and you had pig knives. And I suppose that I can take judicial notice that a sawn-off shotgun would not be much use in shooting pigs.
18You were arrested, as I said, on 5 October and in a record of interview you admitted the responsibility for the two - your involvement in the two aggravated burglaries and admitting fighting with Mr Brown and hitting him with the golf club. You said in the record of interview that in fact the golf club itself, you had been playing golf the day before and it was just adjacent to the house and when you heard the scuffle with Mr Brown, between Mr Brown and Mr Russell you grabbed that and took it in there and that led to you then assaulting Mr Brown with the firearm. Sorry, with the golf club.
Seriousness of the offending.
19In analysing the seriousness of the offending it is important to consider your state of mind at the time. There is no victim impact statement but it must have been something of a shock to Mr Brown, although he said he was not scared in his statement. So he is obviously quite a robust sort of individual and he has not put in a victim impact statement.
20As I say, the offending arose because you had this irrational belief that Mr Brown was responsible for the theft of your motorbike and your particular state of mind is cogently set out in the text messages that you were sending to Ms Bolt shortly prior to the second time that you went into that premises where the text messages, particularly the ones set out at depositions 211, indicates a sort of - I incorporate it by reference. But it seems to indicate you wanted to use the bike to go racing the next weekend but, 'I fucking hate living, I can't do this anymore. I've had it. I feel like 200 Ks and putting my car into a pole. Fuck me'. So that is sort of a despairing type of text and that is relevant to the background of the offending.
21In relation to the second aggravated burglary you were virtually a technical trespasser. It is not disputed that Mr Russell was in the bedroom first and he had permission to go in there, but because of the prior advice by Ms Paige that you were not to enter the premises you were a trespasser. So that made it an aggravated burglary. But it is certainly on the lower end of the scale of aggravated burglaries. And you went in there arguably to - after the fight started between Mr Russell and Mr Brown and you grabbed the nearest available weapon.
22So the offending, I am satisfied, in relation to the assault was spontaneous. The firearm offence as I said was situational, was found in the garage that you occupied. There is a reasonable inference in relation to the firearm, given your lack of violent prior convictions, that it was owned by someone else, but you have accepted reasonability that you possessed it.
23In relation to the assault on Mr Brown it is not submitted that there was any sort of joint criminal enterprise or joint agreement for the two of you to assault him, but what happened when you then - it was an almost an instantaneous joint assault on him when you got into the room and saw him struggling with - the struggle between Mr Brown and Mr Russell.
24Mr Russell was dealt with in the Magistrates' Court for intentionally causing injury and was sentenced to around 100 days pre-sentence detention, which was time served, and a two year community corrections order. So the issue of parity is relevant to that. Although, your involvement is slightly different in the two of you in the intentionally causing injury charge. But, indeed, the charge although there was - appears there was a break to the bone of Mr Brown it is in the lower and of an injury.
Prior Convictions
25For a 42 year old man this is your first appearance before a higher court and it is your first appearance for offences of violence. You have admitted, without conviction, handle stolen goods in 1993; without a conviction, charge of theft in the Magistrates' Court in 2000 and then your most recent convictions were on 8 August 2017 for one of dishonestly undertaking retention of stolen goods and dealing with proceeds of crime and you were sentenced to a community corrections order with conviction for 12 months, with some community work. In addition to that, earlier this year, which must have been offending that occurred before - I do not know. Anyway, in earlier this year was not a prior conviction, 7 February, you were before the Bendigo Magistrates' Court for fraudulently a label, driving whilst authorisation suspended and using a unregistered car.
26So your prior convictions are minimally relevant to this offending, although you were on a community corrections order for about two weeks before you committed this offending. But I would see them as having a very low level of relevant.
27You are aged 43. Your personal circumstances are set out in the report of Mr Cummins and also in the defence submission. It appears that your parents’ marriage broke down very early in the peace when you were aged seven or so, then your mother re-partnered and you did not get on well with the stepfather. A major event in your upbringing was you had meningitis at age four months and that led to an impairment in your developmental progress. You went to a number of primary schools and left school at 13.
28You then were involved in a friendship or a relationship with a woman and you were effectively taken in by her family. You managed to complete part of Year 9 and then you went to Queensland with her brother, stayed there for a year and then you commenced labouring and plumbing with your then girlfriend's father. Later, subsequent to that, you qualified as a butcher and then you worked in a slaughterhouse and then you did three years of four years of an electrical apprenticeship, but you were unable to complete that due to an injury.
29Subsequent to that you had a significant period of stable employment in the transport sector until about 2017. You had a long term relationship with Ms Withers and you have a 21 year old child, Taylor, as a result of that relationship and then after a significant gap two other children, Jack, who is nearly eight and London, who I think is a girl, who is now nearly seven.
30Ms Withers has had her problems with drugs. You have had your problems with drugs and now the children are in DHS care and they have been placed with her maternal grandmother in Newcastle and there are access arrangements where they are seen, they are brought to Victoria once a month to see you and possible see their mother.
Issues in sentencing.
31Parity with the co-offender is relevant. Although the offending is not strictly the same, but it is a matter to be considered. You have already served 306 days pre-sentence detention on remand. I regard this as significant. It is a greater burden than a straight sentence cause you do not - you remain in a state of uncertainty.
32You used your time in remand productively, you have done a course in anger management. You have also seen a psychiatric nurse on a number of occasions while you have been on remand. Significantly, it must have been quite a burden on you, you have put on substantial weight as a result of possible depression while you have been on remand.
33You then were able to obtain bail and you have been on bail for almost exactly 12 months. And you have been reporting three days a week to the Bendigo police station and you have got a curfew from 9 pm until 6 am. I regard those bail conditions as onerous and they are almost like home detention. Not dissimilar from the conditions that seem to have applied to Mr Epstein in the United States of America some time ago.
Prospects of rehabilitation.
34Mr Cummins, an experienced examiner, has assessed you as having a low risk of reoffending. I give this very considerable weight given the lack of relevant prior convictions and the situational nature of the offending. He says that the offending is out of character. He says that you do not have an antisocial personality disorder. He also notes that you were psychologically vulnerable at the time of this offending and he regards the risk of reoffending as low.
35In addition, in terms of prospects of your rehabilitation, I have noted the references from your family, from your daughter and the family friends that you have been staying with. They indicate that the offending was out of character and that you have a strong inner resilience to better yourself and get back from this offending.
36You now also have a relationship with a woman who holds responsible position up in Wodonga, she also is in a position to offer you employment. And in addition to that, while you have been on bail you have been seeking to get licences to work as a plant operator.
37
Overall, in terms of your prospects of rehabilitation your age is significant. As submitted by your counsel your life went downhill after you lost your home through fire in 2012, that led to employment problems and the increasing drug use, including cannabis and recreational use of ice. The fact that you have held down steady employment for long periods in the past is very significant in terms of your prospects of rehabilitation, which I regard as very good, as does
Mr Cummins.
Sentencing submissions.
38The learned Crown Prosecutor reminded the Court of the position enunciated by the Court of Appeal in cases such Hogarth[4], Myers[5] and Bowden[6], referring to the need for general deterrence in relation to aggravated burglary cases. Although the court did accept that there was a variety of circumstances associated with each aggravated burglary. In this case the fact that the parties were know to each other and it was situational means that I regard both of them as on the lower-end of the scale.
[4]Hogarth v The Queen [2012] VSCA 302; 37 VR 658
[5]DPP v Meyers [2014] VSCA 314; 44 VR 486
[6]DPP v Bowden [2016] VSCA 283
39The learned Crown prosecutor submitted that the appropriate disposition in this case could be within - a combination sentence could be within range. But her firm submission was that you need to do some further time in prison to justify or to make out all the relevant ends of sentencing.
40Your counsel in their comprehensive plea put that the time served is sufficient to meet all the requirements of detention and denunciation and general deterrence, and that it would be appropriate to release you forthwith on a community corrections order. He referred me to a decision of His Honour Judge Trapnell, out of the Bendigo circuit, where a combination sentence was imposed.[7]
[7]Director of Public Prosecutions v Calleja [2019] VCC 893
41
In sentencing you I have had regard to your plea of guilty. It was at the door of the court for the trial, but your counsel put and the prosecutor accepted that there had been discussions beforehand and it was really a matter of - and you made full admissions to everything except the firearm offence in the record of interview and it was a matter of arguing about whether you would accept responsibility for the firearm offence and that occurred when further
DNA testing. So while the plea was not immediate, I regard the plea as significant and relatively early and you get credit for that.
42You also get credit for your remorse as testified in your admissions to the offending, the aggravated burglary and the injury offence in the record of interview, in the report of Mr Cummins and in the testimonials that have been filed in this case.
43In this case I regard it is appropriate to focus, in terms of the ends of the purposes of sentencing, which are of course general deterrence, denunciation, just punishment, rehabilitation and protection of the community. In this case I regard it as appropriate to focus on your rehabilitation, particularly given the period of imprisonment that you have already served. I regard a further period of imprisonment as setting back your progress to rehabilitation and not being in the community interest.
44You have admitted responsibility for this offending very early in the peace. Your state of mind at the time of the offending was that you were virtually homeless and about to move out of that particular location and the bike was very important, the motorbike was very important in your self-esteem at that point.
45In the Cummins report he indicates that you in fact had sought help from a psychologist prior to this offending to address your drug issues and sought to go back to your parents, but that had fallen over. So you were psychologically fragile and you were seeking to address your problems.
46You have shown insight into your offending and you have shown in the past that you can be a responsible member of the community. You have an offer of employment and you have a stable relationship now.
47Another very significant factor why it is appropriate not to return you to prison is you have two young children who are in the DHS custody and they are now interstate with their maternal grandmother. They need their father, they need their father to be more involved in their lives and they need him to be involved in their lives as soon as possible. For every month that you are not directly involved it impairs their own psychological development. And the sooner you get in a position where you can possibly get back custody of them or get custody of them or get in a position to be able to see them on a more regular basis the better and a further period of imprisonment would deter that.
48So for all those reasons I accede to the submission of your counsel that a rehabilitative disposition is appropriate and that a further period of imprisonment is not appropriate in all those circumstances.
49So the sentence of the court, could you please stand. I have decided to impose an aggregate sentence as all the offending arises out of a course of conduct over a couple of day period and therefore it is appropriate that there be an aggregate sentence.
50And so the sentence of the court is an aggregate sentence of 306 days' imprisonment and to be followed by a two year community corrections order. I declare you have served 306 days pre-sentence detention.
51The terms of the community corrections order are the usual terms, that you be under supervision for that two years, that you not commit an offence over the two year period, that you advise them of your change of address and that you report to the Bendigo community corrections office within two days, and that you undergo assessment and treatment for drug abuse and dependency as they direct. Also alcohol abuse and dependency as direct, although you indicate you have stopped drinking. Mental health assessment. There is reference to in Mr Cummin's report to getting a mental health plan. You had one, you can get another one. And participate in courses relating to the offending as directed. And you have already done one course and I think you might be enrolled in another one. So the courses for men's behaviour change and aggression. It is appropriate that you engage in those courses.
52I declare that had you not pleaded guilty I would have imposed an aggregate sentence of three years' imprisonment with a two year minimum.[8]
[8] Pursuant to s. 6AAA of the Sentencing Act 1991.
53Any other matters, Madam Prosecutor?
54MS DUCKETT: Yes, just the disposal and the forfeiture. The forensic sample will be automatically retained.
55HIS HONOUR: Right. Yes, I'll make the forfeiture order and the disposal order that the prosecutor has sought.
56MS DUCKETT: Thank you.
57HIS HONOUR: I want to emphasise, Mr Laycock, that I'm giving you this one opportunity. It is fork in the road territory for a 43 year old man in the big league, in terms of offending. But you have done some time, you've got insight into the offending; you know it's drug and relationship related and so you've got to get yourself back into employment, back into a stable relationship and stable housing and try and get yourself back to the state you were obviously in, in your 30s, which is just get of drugs, get out of bad company and be a productive member of the community and a father to these two younger children and support your other 21 year old daughter. If you do breach this community corrections order you will be brought back to me and I'll remind you of what I said to you.
58You have got to go to the community corrections people within two days up there in Bendigo and then if you decide to move, relocate to Wodonga, well, they'll make arrangements for you to be supervised by the people up in the Wodonga Community Corrections Office.
59Any other matters, Madam Prosecutor?
60MS DUCKETT: No, Your Honour, they're the matters, thank you.
61HIS HONOUR: I want to thank both counsel for their assistance in this matter. Very comprehensive outline from the prosecutor and a comprehensive defence submission, Mr Kantor.
62MR KANTOR: As Your Honour please.
63HIS HONOUR: Adjourn till 9.30 tomorrow.
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