DDP v Matsen
[2021] VCC 1245
•2 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODY MATSEN |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 19 August 2021 | |
DATE OF SENTENCE: | 2 September 2021 | |
CASE MAY BE CITED AS: | DDP v Matsen | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1245 | |
REASONS FOR SENTENCE
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Subject: Burglary, Theft, Arson, Obtaining property by deception.
Catchwords: Guilty plea – set fire to a house in the course of a burglary – 19-year-old 1st offender – family deprivation – COVID benefit of plea
Legislation Cited: Sentencing Act1991 (Vic).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37; Marrah v The Queen [2014] VSCA 119; Farhan Fariah v The Queen [2021] VSCA 213; Boulton, Williams v The Queen [2018] VSCA 171.
Sentence: 201 days imprisonment, served by way of pre-sentence detention, and 2-year community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | D. Cordy | Office of the Director of Public Prosecutions |
| For the Accused | R. Lawrence | Camerons Lawyers |
HIS HONOUR:
1Brody Matsen, you have pleaded guilty to:
·one charge of burglary (Charge 1)
·one charge of theft (Charge 2)
·one charge of arson (Charge 3); and
·two charges of obtaining property by deception (Charges 4 and 5).
Circumstances of offending
2The circumstances of your offending are set out in the summary of prosecution opening[1]. They are agreed facts.
[1] Exhibit A.
3You knew Jamie Roberts, Liam Foenander and Riley Trickett. They were 14 and 15 years old; you were 19.
4They knew Sophia Hrisovergi, who was 13 years old. She lived with her mother and siblings at Parker Street, Shepparton. They also knew the house was temporarily unoccupied.
5In the early hours of 9 April 2019, the four of you decided to go to the Hrisovergi home knowing no one would be there. You got there around 3 AM. One of you climbed through an unlocked window and opened the back door for the others (Charge 1 - Burglary).
6Between you, you went through the house and you stole 2 Samsung tablets (Charge 2 – Theft), and put them in your backpack. iPods, laptops, jewellery and cameras were also stolen.
7According to Foenander, you said you were going to burn down the house so you wouldn’t get caught.
8You grabbed an aerosol fly spray can from the kitchen and went into a bedroom where you sprayed its contents on a bed and set it alight with a cigarette lighter (Charge 3 – Arson).
9When the bed caught fire you yelled to the others to “run”.
10You all went to a local school where you went through the stolen goods and then to McDonald’s.
11The CFA put out the fire. The house and contents were destroyed.
12The next day, on 9 April 2019 you sold one of the stolen Samsung tablets at Cash Converters for $80 (Charge 4 – Obtaining property by deception).
13Later, on the same day, you returned to Cash Converters and pawned the second stolen Samsung tablet for $70 (Charge 5 – Obtain property by deception).
14On 12 April 2019, police spoke to Roberts who admitted he went to the house with Trickett, Foenander and you and items were stolen. He said you lit the fire.
15On 15 April 2019, police spoke to Trickett who made similar admissions and on 19 April 2019 police spoke to Foenander, who also made similar admissions.
16Police had spoken to you on 15 April 2019. When asked about your movements at the time of the fire you said you had been drinking, got a bit too drunk and didn’t remember the night.[2] You said you did not remember going to an address where a house caught fire.[3] You denied being there at the house with your co-offenders.[4] You denied any knowledge of the burglary, the fire or the stolen Samsung tablets.[5] When police showed you the Cash Converters records which showed you had pawned the tablets in your name, you had no explanation other than you must have been drug affected.[6]
[2] Record of Interview, Q 96.
[3] Record of Interview, Q 98.
[4] Record of Interview, Q 151.
[5] Record of Interview, Q 431.
[6] Record of Interview, Q 453.
17You were charged and released on bail.
18On 5 July 2019 police arrested you in relation to an alleged bail breach and other offences. When they interviewed you, you told them your earlier denials of any involvement in the burglary were untrue. You admitted you had broken into the house with others and stolen the tablets. You said, when you offended, you were living rough. You denied lighting the fire.
19By your guilty plea now you also admit:
(a) you pawned the 2 Samsung tablets at Cash Converters, and
(b) you lit the fire.
20You were remanded in adult custody following your arrest.
21You have no prior criminal history.
22However, since this offending you have appeared before the Courts three times.
23On 21 May 2020, at Shepparton Magistrates Court, your fined $1000, without conviction, for family violence, breach of bail and property related offences. On 10 July 2020, at Shepparton Magistrates Court, for breaching a bail condition, your fined $250 without conviction. On 17 August 2020, your released on a 12-month community correction order for driving and bail offences.
24You also have a pending matter.
25On 21 September next you are to appear at the Shepparton Magistrates Court to answer further family violence and driving related offences.
Personal circumstances
26You were born in December 1999 at Shepparton.
27You were 19 when you offended; you are now 21.
28Your personal circumstances are set out in the psychological report of Warren Simmons.[7]
[7] Exhibit 2.
29You were raised by your mother. You have never met your father who, over the years, has rejected your attempts to contact him. You have an older brother and an older sister.
30You describe your childhood as “hectic”. You were witness to, and victim of, family violence perpetrated by different partners of your mother. While your mother tried her best to provide for you, your family was poor; at times, you stole clothing and food. Despite the deprivation, you reported a close relationship with your mother and siblings.
31You went to local schools. During primary school you were diagnosed with ADHD and treated with medication. You struggled and, in year 7, you were moved to a special school. You left in year 10 and went to TAFE. Your reading and writing are weak and you believe you may suffer from dyslexia. Before you were remanded in custody you were undertaking a building and construction course.
32You had smoked marijuana when were at school. Towards the end of 2017, a friend introduced you to methamphetamine. You were using the drug casually until 2019, when you changed groups of friends and, by the time of your offending, it had escalated to daily use. You have had a period of enforced absence while you have been in custody.
33Your time in goal has been difficult. As a 19-year-old, it was your first time in custody. Shortly after your imprisonment, you were hospitalised for septicaemia as a result of a spider bite. In mid-2020, you self-harmed. Subsequently, you were prescribed an antidepressant which has made you feel better. You have work as a kitchen billet and have improved your speaking and writing.
34You were supported by your mother and sister at Court. Your mother has been permitted only one prison visit. You have telephoned her daily. When you are released you will live with her at Mooroopna.
35Mr Simmons assessed you on 27 November 2020.
36In his opinion, your traumatic and deprived childhood made you vulnerable to substance abuse and has left you with a social anxiety disorder.
37To him, you appeared motivated to make changes in your life.
38In his opinion you would benefit from psychological and drug and alcohol counselling.
Defence submissions
39Mr Lawrence[8], who appeared on your behalf, submitted your offending was immature with little or no thought as to the consequences.
[8] Exhibit 1.
40He relied on the following factors in mitigation of penalty:
(a) firstly, your guilty plea for its high utilitarian value[9] particularly during the covid pandemic,
(b) secondly, your relative youth,[10]
(c) thirdly, your lack of criminal history,
(d) fourthly, your disadvantaged background, and[11]
(e) fifthly, the hardship of imprisonment, during the public health emergency, for a young, first offender.
[9] Worboyes v The Queen [2021] VSCA 169, at [35]-[39].
[10] Azzopardi [2011] VSCA 372, at [34].
[11] Bugmy [2013] HCA 37 at [44].
41He submitted I should impose upon you combination sentence incorporating a prison term equivalent to the time you have served and a Community Corrections Order with conditions tailored to your rehabilitation.
Prosecution submissions
42Mr Cordy, who appeared for the director of Public Prosecutions, submitted your offending, which involved the destruction of a family home, was serious.
43He submitted, because of the seriousness of your offending, a sentence of imprisonment should be imposed.
44He accepted, taking into account the mitigating factors in your favour, a Community Corrections Order in combination with a term of imprisonment is within sentencing range.
Consideration
45Arson, as the maximum penalty of 15 years imprisonment demonstrates, is a very serious offence.
46Your offending was serious. A home was destroyed.
47General deterrence and denunciation are important sentencing considerations. A term of imprisonment must be imposed.
48Current sentencing practices demonstrate a term of imprisonment, without a Community Correction Order, does not always follow.
49Your sentence is to be moderated to take account of a number of significant mitigating factors in your favour.
50Your criminal behaviour was immature and naive. You gave little or no thought to the consequences of lighting the fire. You used your true identity to pawn the stolen tablets. All the while you were in difficult circumstances living alone and rough.[12]
[12] Azzopardi [2011] VSCA 372, at [34]
51Your guilty plea, made at the earliest opportunity has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[13]
[13] Worboyes [2021] VSCA 169, [35] and [39]
52Your childhood social deprivation and abuse is mitigatory. It frequently precedes and often explains and contributes to an offender’s criminal conduct.[14] It is notable, despite your disadvantaged upbringing, you had not broken the law until you broke into the vacant house with your friends.
[14] Marrah v The Queen [2014] VSCA 119, [16]
53Your youth and previous good character require your prospects of rehabilitation be given significant weight.[15]
[15] Farhan Fariah [2021] VSCA 213, [29]
54While you are not to be punished for your subsequent offending or the charges outstanding those matters are relevant to specific deterrence and rehabilitation.
55A Community Corrections Order can enable the punitive and rehabilitative objectives of sentencing to be served at the same time, even in cases of very serious offending.[16]
[16] Boulton, Williams [2018] VSCA 171, [47] Azzopardi [2011] VSCA 372, at [34]
56I have had you assessed for our Community Correction Order and, whilst you breached the Community Corrections Order imposed in July 2020, by further offending and non-compliance, you have been found suitable for another.
57Overall, I am satisfied a composite sentence of imprisonment and an intensive Community Corrections Order, with conditions to promote your rehabilitation, can achieve all sentencing objectives in your case.
58You have already spent 298 days in custody; 201 days relate to this proceeding. It is substantial punishment for a young man, who has not been incarcerated previously, made harder by COVID-related restrictions.
59I am satisfied all sentencing objectives can be achieved without requiring you to serve further time in prison.
60Because your crimes arose from one episode of offending I will impose an aggregate sentence for all of them.
61And, because you are to be sentenced for several crimes, I have had regard to the totality principle to ensure your sentence is a proper measure of your overall criminality.
62Mr Matsen, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
63Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges arson, burglary, theft and obtaining property by deception, you are convicted and sentenced to 201 days’ imprisonment in combination with a Community Correction Order.
64The Community Correction Order will commence upon your release from prison.
65The duration of the order is two years.
66In addition to the core conditions, I impose the following special conditions:
(a) Drug treatment and rehabilitation;
(b) Alcohol treatment and rehabilitation;
(c) Mental health treatment and rehabilitation;
(d) Programs to reduce risk of reoffending;
(e) Supervision; and
(f) Judicial monitoring.
67Pursuant to section 18(4) of the Sentencing Act I declare you have already served your 201-day prison term by way of presentence detention.
68While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 2 years and 6 months imprisonment and fixed a minimum non-parole period of 1 year and 9 months.
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