IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

Case No. CR-20-00697

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DAVID PETER OBLEIN		

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JUDGE:	HIS HONOUR JUDGE GEORGIOU 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 June 2020	
DATE OF SENTENCE:	14 July 2020	
CASE MAY BE CITED AS:	DPP v Oblein	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1024		

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW
Catchwords: 	Intentionally causing injury – zygomaxillary complex fracture – possession of methylamphetamine – dysfunctional upbringing – limited education – lengthy history of drug and alcohol abuse – institutionalisation – early plea of guilty – guarded prospects of rehabilitation – 
Legislation Cited:	
Cases Cited:		Bugmy v R (2013) 249 CLR 571
Sentence: 		Total effective sentence 24 months imprisonment with a non-parole period of 16 months.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr D O’Doherty	Solicitor for the Office of Public Prosecutions	
			
For the Accused	Mr S Lee	MIR Lawyers	

HIS HONOUR:

1	David Oblein, on 21 November 2019 you were staying at 3 Raymond Court, Mildura.  During the evening the victim in this matter Wesley Berrett attended at that address to visit you and others living there.
2	At approximately 1am on 22 November 2019, you and Mr Berrett were talking about drugs when an argument between you developed.
3	The argument was heated and escalated to the point where you grabbed
Mr Berrett by the throat and started punching him to the face.  Mr Berrett, who was aged 59 at the time, was cowered in the corner of the kitchen whilst you stood over him.  You punched him to the face several times.  This conduct constitutes the charge of causing injury intentionally to which you pleaded guilty.
4	Dylan Buttery one of the residents went to the kitchen after hearing raised voices. He saw you assaulting Mr Berrett and got between you to stop the assault.  He then dragged Mr Berrett out of the kitchen and outside of the house telling him to leave.  
5	Mr Berrett walked towards Deakin Avenue and was found by two persons who assisted him to the Mildura Base Hospital.  He was treated at the hospital and remained there until 25 November 2019.  
6	A report was made to police by Mr Berrett and on 26 November 2019 a search warrant was executed at your address.  You and another resident of the address were arrested and taken to the Mildura Police Station for interview.  During the search a small plastic bag containing a crystal substance was found in the bedroom occupied by you.  That substance was later identified as methylamphetamine.  You have also pleaded guilty to possession of that drug.
7	During the interview you made no admissions to the assault upon Mr Berrett.  You in fact cast the blame on Dylan Buttery telling police that he and
Mr Berrett had an argument over a remote control car owned by Berrett and that you saw Mr Buttery punch the victim to the face four to five times.  You told police that you attempted to stop Mr Buttery from assaulting Mr Berrett.  During the interview you made an admission to possession of the methylamphetamine. 
8	Investigating police obtained a medical report from forensic physician,
Dr Angela Sungaila, of the Victorian Institute of Forensic Medicine.
Dr Sungaila reviewed the medical notes of the Mildura Hospital as well as photographs taken of the victim’s injuries.
9	Dr Sungaila noted the following from the hospital notes:
(1)	Mr Berrett was admitted at the Mildura Base Hospital at approximately 3 am on 22 November 2019;
(2)	he was alert and oriented with a Glasgow Coma Score of 15;
(3)	he was not able to provide medical staff with a history;
(4)	he had multiple lacerations on his face;
(5)	both eyes were bruised and swollen;
(6)	there was bruising and swelling across the left cheekbone;
(7)	there was a cut to his right forehead variously described as a haematoma of the right forehead or several lacerations to the head;
(8)	there was bruising to the left clavicle with pain on palpation; and
(9)	there was an abrasion to the right back of the hand.
10	X-rays were taken which showed Mr Berrett suffered a comminuted and depressed fracture of the left zygomatic arch involving the left lateral orbital wall, zygomaxillary suture, infraorbital wall and the anterior and maxillary sinus walls.  The injuries are known collectively as a zygomaxillary complex fracture.  There was extensive left facial subcutaneous emphysema, and mild comminuted fracture of the nasal bone and nasal septum.  Dr Sungaila also commented on there being possible bleeding into the tissue around Mr Berrett’s eye on the left side.
11	Mr Berrett was referred to the faciomaxillary clinic at The Alfred Hospital.  An appointment was made for him to attend on 29 November 2019 but he did not do so.
12	The offence of intentionally causing injury carries a maximum penalty of
10 years’ imprisonment and the offence of possessing methylamphetamine carries a maximum penalty, in the circumstances, of one years’ imprisonment. I was not told the quantity of the methylamphetamine you possessed but it was accepted by the prosecution, and I am satisfied that you possessed the drug for your own use.
Background and Personal Circumstances
13	I turn now to a consideration of your background and personal circumstances.  You were born in Penrith, New South Wales, and are 31 years of age, as you were at the time of the offences.
14	Mr Lee, who appeared on your behalf, tendered a report prepared by psychologist, Jennifer Sankaran, dated 16 June 2020.  It was a most helpful report. Your childhood which you described to Ms Sankaran was characterised by physical, emotional and sexual abuse and neglect.  You do not know your father. Your mother abandoned you to your maternal grandfather.  You reported being placed in the care of the Department of Health and Human Services after your grandfather sexually abused you and your step-sister.  From the age of four and a half years until you were 16, you were placed in some 80 different foster homes.  You reported having suffered severe emotional and sexual abuse at the hands of your foster parents and in boys’ homes.  You told Ms Sankaran that you had no stable relationships or persons to look up to.  You reported that at the age of 16 you were kicked out of the boys’ home at South Melbourne and began to live on the streets.
15	You received only a limited education. You did not complete Year 9 as your schooling was frequently interrupted.  This was mainly as a result of you being moved between foster families and boys’ homes.  You reported having been suspended from schools several times for your bullying and bad behaviour. You nevertheless managed to enrol in, and complete, a TAFE course in cooking and food preparation. 
16	You have not held any job and have supported yourself mainly through criminal activity.  You told Ms Sankaran that you have never had a normal life and that you have been 'pretty much in jail ever since you could count'.  You said that life was easy in gaol, easier than when not in gaol.
17	You have a lengthy history of drug and alcohol abuse.  You started using amphetamine when you were aged 14, and by the age of 17 you were habitually using cannabis and methylamphetamine.  You also abused alcohol and buprenorphine.  You reported to Ms Sankaran that drugs helped to mask your feelings and helped you to fit in.  You believe that you cannot get through life without drug use.  Despite your belief, you nevertheless acknowledged that your substance abuse has destroyed your life.  Whilst you have mixed feelings about drug and alcohol counselling, you acknowledged that you need as much help as you can get.
18	Ms Sankaran stated:
'Mr O’Blein grew up in a criminogenic environment characterised by substance abuse in mother, physical, emotional and sexual abuse from multiple carers, including his grandfather. His constant relocation to different foster homes and long-term victimisation and childhood trauma violated his sense of safety and ability to form lasting interpersonal relationships. As a result, he developed a general suspiciousness and a lack of trust in authority. His inability to trust others led to a chronic feeling of emptiness which exacerbated his emotional distress and low self-esteem.
The presence of a high level of impulsivity and low frustration tolerance encouraged him to use drugs to cope with his childhood trauma and the grief related to the loss of his son'.
19	I was told that at the age of 17 you had a child. He passed away when aged approximately 12 months, and you have never adequately grieved for this loss.
20	On mental state examination Ms Sankaran reported that you impressed as a man with impairment to your capacity for general good judgment and to your ability to plan and execute positive self-sustaining behaviours. You expressed minimal insight into your psychological functioning and offending.
21	You have an extensive history of criminal offending.  It no doubt reflects your dysfunctional upbringing.  I will not recite each matter but note that since December 2007 you have had 11 separate court appearances.  Your prior convictions include convictions for armed robbery in 2009, 2010 and 2013.  On the latter two occasions you were sentenced to a term of imprisonment of four years on each of the armed robberies.  You also have convictions for unlawful assault, recklessly causing injury, intentionally damaging property, theft, failing to comply with a community-based order, and possession of methylamphetamine and other drugs.
22	The offences before me occurred within seven days of you being placed on a Community Correction Order at the Mildura Magistrates’ Court.  It is clear that you had little regard for the opportunity then given to you by the Magistrate.
23	Ms Sankaran considered that you have a prolonged history of incarceration and institutionalisation, which carries certain psychological costs such as the struggle to adjust to life outside of prison and the manifestation of psychological disorders or other forms of personal pathology, requiring long term therapeutic interventions. 
24	In Ms Sankaran’s opinion you suffer from:
•	a severe cannabis, stimulant and opioid use disorder, in early remission, in a controlled environment;
•	a persistent depressive disorder and post-traumatic disorder without specifiers;
•	an anti-social personality disorder with a history of conduct disorder in adolescence;
•	a borderline personality disorder; and
•	unresolved grief related to the death of your son.
25	Ms Sankaran stated that your severe childhood trauma, unresolved grief and unmanaged mental health issues underpin your substance abuse and offending.  She considers that you are likely to present with a number of challenges in terms of your safe management in the community.  You are in clear need of specialist psychological treatment.
26	This morning I received a further report from Ms Sankaran, dated 10 July 2020.  It was tendered and is marked Exhibit D3.  In that report Ms Sankaran stated that:
'The combination of post-traumatic stress disorder, persistent depressive disorder, substance use disorder, along with the borderline and antisocial personality features make Mr O'Blein's condition complex.  Although personality disorders are often a lifelong problem, the prognosis is improved with the willingness of the client to engage in a long term intervention process and to test and practice his or her newly learnt skills'.
27	She considered that your condition is severe.
28	You are in the Borrowdale separation unit at Port Phillip Prison.  You report that you are segregated from other inmates following a brutal attack upon you in prison approximately three months ago.  You report being locked up in your cell 23 hours per day.  Although enquiries were made by the prosecution, they are not in a position to dispute what you instructed your counsel.  Accordingly, I am prepared to act on that basis.
29	In custody you are prescribed Avanza for your depression, methadone for your drug dependence and quetiapine, which is an anti-psychotic agent.
Submissions
30	Mr Lee acknowledged that your assault on Mr Berrett was serious. It occurred in the context of an argument over drugs and you wanting Mr Berrett’s suboxone. Mr Lee also acknowledged that it was Mr Buttery who separated you and Mr Berrett and not as you told police when interviewed.
31	Mr Lee submitted that your pleas of guilty were indicated at a committal mention on 26 May 2020, that you have been on remand since
26 November 2019, and that you have served your time under onerous conditions in protection with the added difficulties caused by the COVID-19 restrictions on activities, including visits.  It was further submitted that Verdins’ principle 5 applies in your case.
32	Mr Lee submitted, based on Ms Sankaran’s report, that without the much needed treatment she recommended, you present a risk of further offending. To that end, in his written outline, Mr Lee submitted that all sentencing considerations could be met with a term of imprisonment in excess of the six months already served and a Community Correction Order. In oral argument, he submitted that I should sentence you to time served and place you on a Community Correction Order and that the protection of the community would be best served with your rehabilitation. 
33	Mr O’Doherty, who appeared on behalf of the Director of Public Prosecutions, submitted that in all the circumstances the only appropriate sentence is one of a term of imprisonment and a non-parole period. He submitted that your breach of the Community Correction Order within seven days of it being imposed, your criminal history and the lack of any compelling evidence as to your prospects for rehabilitation, a Community Correction Order was inappropriate. 
Sentencing Considerations
34	I consider your assault on Mr Berrett to be a serious instance of this offence. You were a much younger man than Mr Berrett, and he was defenceless as he cowered in the corner of the kitchen whilst you stood over him. It was not suggested that he struck at you. You repeatedly struck him to the face, causing him numerous injuries which I earlier described. The force of your blows was sufficient to cause fractures to the zygo-maxillary complex and nose.  This was senseless violence, occurring it would seem, in the heat of the moment following an argument over drugs.
35	You have pleaded guilty at a reasonably early time, thus saving the need for a committal hearing and trial. Witnesses have been spared the ordeal of having to give evidence. You are entitled to a measure of leniency for the utilitarian benefits that result from your pleas of guilty.
36	However, it is not to your credit that when first confronted by police, you denied involvement in the offending and sought to cast blame on a person innocent of anything to do with the assault.
37	You have expressed some belated regret and remorse for your conduct, telling Ms Sankaran that in recent months you have started to understand a little more about what you have done and its impact. You told her that you were sorry for the victim and that he did not deserve what you did to him. Those are encouraging signs. 
38	Ms Sankaran’s report makes depressing reading. What you reported to her as to your background was not disputed and I am prepared to accept it as true. Your offending behaviour and resort to illicit drug use is very much tied in with your dysfunctional upbringing.
39	Although your counsel did not seek to rely on your dysfunctional upbringing as a matter relevant in mitigation, in my opinion, it does have some impact in reducing the level of your moral culpability. Ms Sankaran stated that your early exposure to complex trauma in your childhood led to an inability to trust the world around you and provoked you to engage in acting out behaviour. In Bugmy v R, the plurality of the High Court stated:
'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience.  It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'.
40	As I have said, your offending occurred against a background of a dispute over drugs. Drug abuse has been a significant issue throughout your life. You told Ms Sankaran that you use drugs because they help you to get through life to help you fit in. You acknowledged to her that drug use has caused you much trouble in life. It will continue to do so, as your counsel pointed out, unless you can be effectively treated. 
41	I am however also required to have regard to the protection of the community, general and specific deterrence. These are important considerations in the sentence to be imposed. Others minded to commit similar offences must understand that if they do so they will be punished. The sentence I impose should also operate to deter you from future offending. Further, the sentence must also serve to denounce and condemn your vicious assault. The community expects that those who engage in senseless violence to be punished appropriately. 
42	I am not persuaded that Verdins’ Principle 5 applies in your case. The evidence does not establish the proposition that by reason of your mental health issues your time in custody will weigh more heavily on you than it would on a person in normal health.
43	With regard to your prospects for rehabilitation I consider that they are guarded. You are not without hope but there is nothing in your circumstances that would warrant the imposition of another Community Correction Order at this time. The breach of the Community Correction Order imposed seven days before these offences were committed is a cause for concern as to your prospects. The breach also aggravates your offending behaviour.  If you are serious about ending this vicious cycle of offending and gaol, you will have opportunity to seek out appropriate treatment upon your eventual release. Accordingly, I do not consider it appropriate to impose a Community Correction Order in your case. 
44	I have regard to the fact that you are in protection and that your time in custody will be rendered more difficult by that and the COVID-19 restrictions currently in operation. Your sentence will be moderated on that account.
45	I have also had regard to the Judicial College of Victoria’s Sentencing Manual and the Victorian Sentencing Advisory Council’s Sentencing Statistics, to inform myself as to current sentencing practice regarding the offences charged.  Current sentencing practice is but one of a number of sentencing considerations to which I must have regard.  As might be expected, it is very difficult to ascertain anything more than a general sentencing yardstick, given the wide range of conduct constituting the offence of intentionally causing injury in particular, as well as the myriad personal circumstances of individual offenders. 
46	Taking into account all the circumstances of your offending and those personal to you, you are sentenced as follows:
•	Charge 1 intentionally causing injury 24 months’ imprisonment;
•	Charge 2 possession of methylamphetamine, three months’ imprisonment to be served concurrently with the sentence imposed on Charge 1.  
47	I direct that you serve a minimum period of 16 months before becoming eligible for parole.
48	HIS HONOUR:  Pursuant to s.18 of the Sentencing Act I reckon that the period of 225 days as the period of imprisonment already served under the sentence.
49	Had it not been for your pleas of guilty the sentence I would have imposed is one of 28 months' imprisonment with a non-parole period of 20 months.
50	I make the disposal order that was sought by the prosecution in relation to the drugs.
51	Are there any other matters, gentlemen?
52	MR LEE:  No, Your Honour.
53	HIS HONOUR:  All right.  Well, thank you both for your assistance.  I will now adjourn the court.  Just before I do, Mr Lee, given the circumstances of everyone appearing remotely, would you like some time with your client?  What we will do is vacate the court, switch off the recording machine.  You can have a private conversation with Mr O'Blein and, yes, if you could then call my associate on her mobile phone when you have finished.
54	MR LEE:  Yes, Your Honour.
55	HIS HONOUR:  She will then - she can come in and switch off the various connections.
56	MR LEE:  Thank you for that, Your Honour.
57	HIS HONOUR:  All right.  Thank you.
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