IN THE COUNTY COURT OF VICTORIA
AT Ballarat
CRIMINAL DIVISION	Revised
Not Restricted
 Suitable for Publication	
CR-21-00574

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
AIDEN CONAUGHTON		

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JUDGE:	HER HONOUR JUDGE GWYNN	
WHERE HELD:	Ballarat	
DATE OF HEARING:	15 March 2022; 25 May 2022	
DATE OF SENTENCE:	3 June 2022	
CASE MAY BE CITED AS:	DPP v Conaughton	
MEDIUM NEUTRAL CITATION:	[2022] VCC 841		

REASONS FOR SENTENCE
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Subject:			Criminal law 
Catchwords: 		Intentionally cause injury; aggravated burglary; recklessly cause serious injury; commit indictable offence whilst on bail
Legislation Cited:			Sentencing Act 1991 (Vic)
Cases Cited:			Bugmy v The Queen [2013] HCA 37
Sentence:		Total effective sentence of 3 years and 10 months imprisonment with a non-parole period of 2 years and 8 months.

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions	
			
For the Accused	Mr G. Davies	Kylie Moloney Legal	

HER HONOUR:

1	Aidan Conaughton, you have pleaded guilty on indictment to charges of causing injury intentionally, aggravated burglary and cause serious injury recklessly.
2	You have also entered a plea of guilty to a related summary offence of commit an indictable offence whilst on bail.
3	In sentencing you for your crimes I am obliged to have regard to the maximum penalties which attach to each of the offences you have committed.  Causing injury intentionally carries a maximum penalty of 10 years imprisonment, aggravated burglary carries a maximum penalty of 25 years imprisonment and causing injury recklessly carries a maximum penalty of 15 years imprisonment. The bail offence carries a maximum penalty of three months imprisonment
4	These maximum penalties reflect the seriousness with which Parliament regards these offences.
The offending
5	The circumstances of your offending were set out in a “Summary of Prosecution Opening for Plea” dated 10 March 2022.  It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.
6	Other persons alleged to be involved in the offending include Darren Hay, Brandon Wilson and Sharnae Lewis, but one is listed for trial and the other two have admitted responsibility for different charges.  There is little, if any, application of the parity principle.  
7	The victim is Jayden White who was 18 years of age at the time of the offending and living with his grandmother, Elizabeth Birkett, in Talbot Street, Ballarat. 
8	On 31 July 2020 Mr White spent the afternoon and evening at the home of a friend in Alfredton and whilst there he used both methamphetamine and drank alcohol.  Mr White and Ms Lewis were known to each other as he had sold her drugs in the past.
9	When Mr White saw Ms Lewis was active on Facebook he messaged her to give him a lift back to his grandmother’s house.  She agreed to do so.  There was some discussion about being paid in methamphetamine.  You arrived to pick Mr White up with Ms Lewis.  Both you and Ms Lewis asked Mr White for cigarettes but he did not have any so you stopped at a nearby service station to purchase cigarettes. You then all attended at an address in Spencer Street, Sebastopol, purportedly to drop a cigarette to a friend of Ms Lewis.
10	You and Ms Lewis asked Mr White if he wanted to come inside and he agreed.  A number of people were already inside, including Brandon Wilson and Darren Hay who were not known to Mr White at that time.  On request Mr White gave you and Ms Lewis a small amount of methamphetamine. 
11	Whilst at the premises it is alleged that Mr White was punched by Mr Wilson and punched and kicked by you, Mr Wilson and Mr Hay after a dispute erupted.   An ashtray and a vase were thrown at Mr White.  Mr Wilson grabbed bolt cutters and told Mr White to put out his hand but he refused.  Mr White tried to protect himself by curling up on the couch.  During this attack Mr White suffered a fractured nose and left eye socket and he bled from his ears onto his clothing. These facts form the basis for Charge 1, cause injury intentionally.  Of course that could have been, and perhaps should have been, the end of the matter.  
12	Instead you, Mr Wilson and Mr Hay have said to Mr White that he could go home for 50 grand.  Mr White produced some belongings but was told by you that it wasn’t enough and asked what he had at home.  He said he only had his ‘TV and that’. 
13	You said that you would take him there and you, Ms Lewis, Mr Wilson and 
Mr White all drive to the home where Mr White lived with his grandmother.  Once at the premises you and Ms Lewis got out and one of you told Mr White to go inside.  Ms Lewis had Mr White’s house keys and used them to open the front door.  You and Ms Lewis entered intending to steal from Mr White, forming the basis for the charge of aggravated burglary.
14	Once inside the three of you went into Mr White’s bedroom.  His partner, Melody Williams, was in bed and woke up to voices and the light being turned on.  She saw that Mr White had blood and cuts to his face.  Ms Lewis said, ‘Just do what they want.  You’ll be okay if you do what they want’.
15	You walked into the room and began going through Mr White’s drawers.  You said, ‘Where is your money?  Hand it over’.  A struggle then commenced between you and Mr White, during which time you grabbed a knife that you had found inside the bedroom.  You firstly held the knife near Mr White’s throat and swung it at him.  He grabbed at the blade which cut the webbing on his right hand.  You stabbed Mr White in the stomach area three times and in the buttocks once - these facts forming the basis for the charge of cause serious injury recklessly.
16	You and Ms Lewis then fled the premises. 
17	Mr White’s grandmother, Elizabeth Birkett, was woken by screaming and banging at 5:40 am.  She heard her grandson say, ‘Help me, I’ve been stabbed’.  Mr White collapsed in the lounge and police and ambulance were called. 
18	Mr White suffered significant injuries which were outlined in detail in the Crown opening but included a left eye socket fracture and nose fracture, both of which were associated with the earlier attack in time that morning, as well as a small right pneumothorax, rectal perforation and lacerations to the right buttock and right hand.
19	Mr White underwent surgery to repair the fractures, perforation and lacerations.  He spent a week in hospital with expected follow-up treatment.  The perforated bowel required an external bag to be put in place for some six to 12 months.
20	At the time of this offending you were on bail, the subject of Summary Charge 5, commit indictable offence whilst on bail.
21	To your credit you handed yourself into police on 20 August 2020.  You have some 557 days available by way of pre-sentence detention.
Offence gravity and victim impact
22	This is obviously serious offending.  It does not appear that you had any history with Mr White and had no reason to be involved in the initial assault upon him.
23	At the address in Sebastopol your attack on Mr White involved three on one, automatically placing him at a disadvantage and making him vulnerable.  He was subjected to multiple blows and would have been caught by surprise.  In that sense he had limited, if any, ability to defend himself against a somewhat sustained assault.  It was cowardly in those circumstances.  The injury caused was not insignificant, involving fractures to the facial region.
24	I commented earlier that that could have been the end of the matter, however, it was in the context of this injury that, again as a group, you took him bloodied and beaten to his own home, distressing Ms Williams and Ms Birkett in so doing. 
25	In terms of the aggravated burglary, it is particularised as entry with an intention to steal and is, of course, complete on entry.  With that intention you entered a private home in company, and in the early hours of the morning, and in extremely intimidating circumstances given the assault which had only just taken place and the demand to Mr White for money to ensure his safety.  I note that demand is not the subject of charge and you will not be punished for it, but it is part of the factual circumstances.  I do accept, overall, that the aggravated burglary is not at the higher end of the scale for an offence of its type, as was conceded by the Crown.
26	I also accept that the circumstances of the charge of cause serious injury recklessly occurred spontaneously.  Nevertheless, it involved multiple blows.  The use of a weapon, particularly one with a blade, is an aggravating factor, as it is extremely dangerous and capable of causing both serious injury, as it did in this case, and death.  The use of a knife tends to mean that the probability of serious injury is both high and foreseeable.  Whilst I have no updated information, the Crown opening described the medical procedures that had to be undertaken by Mr White as a result and those likely post injury.   This attack and the aggravated burglary obviously occurred in circumstances where you were already aware that Mr White was injured . 
27	In addition, your offending occurred in the family home of Mr White and his elderly grandmother, Elizabeth Birkett.  This is an environment in which each of them, and Ms Williams, were entitled to feel safe.
28	The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
29	Elizabeth Birkett has prepared a detailed and telling victim impact statement.  She details how she no longer feels safe and secure in her own home, a place in which she had lived since 2011.  She could not help her grandson in the way she would have wished given his hospitalisation coincided with COVID‑19 restrictions.  She reports trouble sleeping and is over vigilant in securing the house.  She describes suffering from anxiety and jumping at shadows.  It is clear that the effect of your offending upon her has been both profound and remains ongoing.
30	Of course Ms Birkett was not the only one affected.  I have little doubt that 
Mr White would have been psychologically impacted over and above the reported physical ramifications for him.  Ms Williams was also exposed to the aggravated burglary and a violent attack on her then partner.   
31	You apparently recall little of the events due to your drug use at that time.
Plea of guilty
32	You have, however, taken responsibility for your offending through your plea of guilty.
33	The Sentencing Act 1991 obliges me to take into account the stage at which you entered your pleas.  You indicated your willingness to plead guilty to the charges on the indictment in March of this year after a ruling admitting identification evidence on 25 November 2021.  Whilst not at the earliest stage, the ruling you sought was important to the weight of the evidence against you and you resolved the matter shortly thereafter.  I do understand that a number of charges which you had otherwise faced were withdrawn by the prosecution.
34	Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court’s operations have been significantly disrupted and many trial dates remain as yet unfixed.  In addition to your plea of guilty having the value I have just described, it also has the value of saving the court time and expense and, importantly, the witnesses the need to attend court for trial and relive what would be traumatic events.
35	I accept, based on the materials before me, that your plea is also one of some remorse given the comments you did make to Dr Loretta Evans.
36	All of these factors will be taken into account in your favour.
Prior criminal history
37	In terms of your prior criminal history you have a concerning history of some 
13 court appearances between 2013 and 2018 to which I have had recourse.
38	Relevantly, you appear to have been dealt with for a range of offences in the Ballarat Children’s Court on 2 September 2013 which, apart from dealing with breaches of youth supervision order, involved a resentencing exercise for offences of unlawful assault and recklessly cause injury.
39	On 14 April 2015 the Ballarat Magistrates’ Court dealt with a range of offences which included contravening family violence intervention orders and a charge of threat to kill.
40	On 8 September 2015 the Ballarat Magistrates’ Court dealt with a charge of intentionally cause injury.
41	Your history overall is otherwise littered with offences of criminal damage, dishonesty offences, graffiti based offences and motor vehicle offences.
42	You have a significant history of breaching court orders, which includes sentencing orders, bail orders and family violence intervention orders.
43	You have received terms of imprisonment on four separate occasions, the longest of which would appear to be a term of imprisonment of six months duration imposed by the Ballarat Magistrates’ Court on 8 September 2015 which, as I have already referred, included a charge of intentionally cause injury, as well as offences of shop steal, commit an indictable offence whilst on bail, theft and obtaining property by deception.
44	From this history it would appear that relatively short periods of imprisonment have not deterred you, nor have supervisory based dispositions assisted you to date.
45	In addition, I am told that whilst on remand you have been sentenced on two occasions.  On 27 October 2020 you appeared at the Latrobe Valley Magistrates' Court in relation to charges which included threat to inflict serious injury and contravene family violence intervention order, theft of motor vehicle, theft of a trailer, theft, handling stolen goods and use of an unregistered vehicle.  This offending occurred in November/December 2019.  You were convicted and sentenced to four months imprisonment.
46	On 16 December 2020 you appeared at the Ballarat Magistrates’ Court for assault by kicking and unlawful assault, also committed in November of 2019.  You were convicted and sentenced to two months imprisonment.
47	Those terms have impacted on your available pre-sentence detention and are relevant to the application of the totality principle, which requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains what is just and appropriate for the whole of the offending.
48	Whilst not to be punished for your criminal history a second time it is relevant to the weight in the sentencing exercise which should attach to specific deterrence, that is, putting you off further offending, denunciation and protection of the community, all of which are factors of some significance in the sentencing mix.  It is also relevant in assessing your prospects for rehabilitation.
Personal circumstances
49	I turn now to your personal circumstances.  
50	You are presently aged 27 years.  You were born and raised in Ballarat, one of four children of which you are the second youngest.
51	A brother, Dermot, is aged 29 and works as a solicitor and a brother Ciaran, aged 28, as a schoolteacher.  You have a poor relationship with each of your brothers.  Your younger sister Deirdre is severely disabled and she is an important part of your life and you in hers.
52	Your mother worked as a nurse and your dad as a real estate agent and were well respected members of the Ballarat community.
53	Your parents separated when you were aged approximately 13 years.  There were difficult aspects of your upbringing in terms of your own behaviour and in terms of family violence said to be perpetrated by your father.  You believe that more of your father’s aggression was directed towards you rather than your brothers.  You recall a home environment in which yelling was common.
54	You resided with your mother upon your parents separating and at one stage you were removed from the family home by Child Protection authorities.  It would appear that this related, in part, to your own behaviour.  
55	Your counsel advocates for application of the Bugmy principles.  I am satisfied that you had difficult circumstances in your upbringing which has contributed to the man you are today.  I am not so satisfied that it was in circumstances of profound deprivation.
56	You do have a Year 10 equivalent education but schooling was difficult for you as you were bullied and experienced learning difficulties.
57	You were using drugs from your teenage years, initially cannabis.  You have used a range of drugs over the years but seem to prefer cannabis and methamphetamine.  You have had short periods of paid employment as a brickie’s labourer, pig farmer and in a food van.  You have experienced periods of homelessness since your mid-teens.
58	Indeed, at the time of the offending before me you were both couch surfing and using drugs.
59	At various stages you have received diagnoses which include attention deficit hyperactivity disorder, oppositional defiant disorder, mixed conduct disorder, anxiety disorder, depression and post-traumatic stress disorder.
60	A report authored by Mr Warren Simmons, psychologist, dated 3 April 2020 has been tendered on your behalf.  It does set out much of your personal circumstances.  Mr Simmons was of the view that a neuropsychological assessment would be of assistance.
61	A neuropsychological report authored by Dr Loretta Evans, neuropsychologist, dated 20 May 2022 has now been tendered on your behalf.  It is a lengthy report which is not the subject of challenge.  I have had recourse to its entire content. 
62	It tells me that whilst on remand you have been prescribed a mood stabiliser and an antipsychotic as you had been hearing voices when you first entered prison. I have no additional information relating to these prescriptions other than you instruct that you are still medicated.
63	In brief summary, Dr Evans opines that you suffer from autism spectrum disorder as you have persistent deficits in social communication and social interaction across multiple contexts and restricted repetitive patterns of behaviour, interests and activities.  Your presentation would appear to be longstanding and from your developmental period.  This condition has caused impairment in your functioning in terms of your lack of social network, inability to independently conduct activities of daily living and a failure to maintain regular employment.  She does not believe that this condition is causally linked to your offending behaviour. 
64	However, your presentation would appear to be more complicated than this diagnosis alone.  You have cognitive inefficiencies in various domains, particularly aspects of executive functioning primarily attributed to an underlying neurodevelopmental disorder.  In addition, you were exposed to abuse and chronic stress during your childhood which Dr Evans opines is likely to have negatively affected your overall brain maturation and social development.  Your use of drugs and alcohol from an early age has further compromised you.  I take this impact of your upbringing into account and Dr Evans’ report overall. 
65	Your capacity to function independently in social situations or in circumstances of perceived or actual threat is likely to be compromised.
66	Dr Evans does view your acute substance intoxication at the time of the offending as likely to be the key contributor to that offending.  This would indicate that your moral culpability for your offending remains high.
67	Whilst relatively comfortable in the prison system your hypervigilant presentation and suspicion of others does pose a risk in this setting.  It affects your interaction with others and has potential to lead you to being harmed.  This is a factor I am prepared to take into account.
68	I do not see a basis to reduce the weight of general deterrence as was submitted on your behalf. 
69	Dr Evans does raise some concerns into the future and concludes that you will require significant community supports and services.  You lack insight into the repetitive nature of your offending and the contribution of your history of poor anger management and poor social skills, in addition to your acute illicit drug use.  She assesses your risk of reoffending as ‘clearly elevated’.
70	Combined with your prior history, and the circumstances of your offending in August of 2020, it would appear that Dr Evans’ assessment overall is that, without significant therapeutic intervention, insight and a willingness on your behalf to engage with services, your prospects of rehabilitation would appear somewhat limited.
Prospects for rehabilitation
71	In terms of assessing those prospects, the time you have spent on remand for this offending has been the longest that you have been required to serve to date.
72	In addition, your period in custody has also been during the Corrections response to the COVID-19 pandemic where I accept, in general terms, that there has been less access to freedom of movement within the prison system, less access to educational and rehabilitative programs and less access to contact visits from friends and family.  New inmates are required to quarantine for 14 days on each occasion of a prisoner movement.  In a general sense this does make any remanded or sentenced prisoner experience more burdensome than it would otherwise be and is perhaps for you a greater sanction and deterrent than it has been on other occasions.  
73	Despite these restrictions, and to your credit, you have obtained a billets position and have managed to access some courses.   
74	Until recently, when moved to Barwon Prison, you had a helpers role with an elderly inmate and struck up a friendship with that person, a friendship that you you now miss given your change in location. 
75	I am told that you have re-established a relationship with each of your parents and speak with them regularly on the phone.
76	You perceive you are no longer welcome in Ballarat and hope to relocate to Gippsland upon release where you did spend some 12 months at one stage.  You believe you can access accommodation and employment with a friend in that area. 
77	You have taken the time to date to think about what you want your future to look like and have indicated a desire for positive change.  This, of course, will require considerable effort on your part.
Sentencing submissions
78	In terms of sentencing submissions, both parties submit that the factors relevant to the sentencing exercise can only be reflected in the imposition of a head sentence and non-parole period.  
79	Before turning to the sentence exercise I will just check with each of the legal representatives that there is nothing they wish to raise.  Mr Plummer?
80	MR PLUMMER:  No, Your Honour.
81	HER HONOUR:  Mr Davis?
82	MR DAVIS:  Nothing, Your Honour.  Not at all.
Sentencing
HER HONOUR: 
83	The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters which  include the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim. 
84	I must also balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are safely reintegrated into society. 
85	I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case.  I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.
86	For the summary offence of commit indictable offence on bail you are convicted and sentenced to 14 days imprisonment, to be served concurrently with other sentences imposed this day, in the interests of the totality principle and bearing in mind the low maximum penalty for that offence.
87	For Charge 1, causing injury intentionally, you are convicted and sentenced to 
18 months imprisonment, six months of which will be cumulative on other sentences imposed this day.
88	For Charge 2, aggravated burglary, you are convicted and sentenced to two years and two months imprisonment, eight months of which is cumulative on other sentences imposed this day.
89	I do see Charge 3 as the most serious in the context of your offending.  For the charge of causing serious injury recklessly you are convicted and sentenced to two years and eight months imprisonment.  This is the base sentence.
90	The total effective sentence is, therefore, one of three years and 10 months imprisonment.  I fix a period of two years and eight months before you are eligible for parole and reckon 557 days as having already been served.
91	Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty.  If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years and a minimum of three years and four months before being eligible for parole. 
92	If there’s nothing either of you wish to raise I’ll stand down now until my next matter at 11.45 and leave Mr Davis to speak with Mr Conaughton.
93	MR PLUMMER:  Nothing arising, Your Honour.
94	HER HONOUR:  Thank you very much for your assistance, Mr Plummer.
95	MR DAVIS:  Your Honour, I didn't catch the month period on charge - on the minimum - the total of the sentence.
96	HER HONOUR:  Two years and eight months.
97	MR DAVIS:  Thank you, Your Honour.  I apologise.
98	HER HONOUR:  That’s all right.  Thank you.  I’ll stand down now till 11.45.
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