Department of Justice v WR
[2012] VCC 882
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01249
CR-12-01248
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGUS ROBERT ENERY BRENDAN DENIS JENKINS |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | DPP v Enery & Anor. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 882 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Ayres with Ms L. Stevenson | |
| For Accused Enery For Accused Jenkins | Mr G. Chisholm Ms A. Burnnard |
HIS HONOUR:
1 Brendan Denis Jenkins, also known as Brendan Denis Mills, and Angus Robert Enery - you can stay seated for the time being - you have each pleaded guilty to an indictment charging you with aggravated burglary on 29 September of last year, and on the same date with stealing a mobile phone. Both offences were committed against the property of Brian Charles Gauci, for whom you, Brendan Denis Jenkins, had previously worked for some two years.
2 Brendan Jenkins, you have also admitted one prior court appearance which was in the Children's Court and it resulted in you being dealt with without conviction. I do not consider that to be of significant relevance to this sentencing exercise, that court appearance having taken place in 2005.
3 The offences to which each of you have pleaded guilty are serious offences. In the early hours of 29 September 2011 each of you, along with your co-offender, McMaster, met together and decided that you were going to engage in a burglary and you chose the premises of Mr Gauci who, as I say, was a previous employer of you, Jenkins. It seems that your employment had terminated in somewhat unfriendly circumstances and that in part, at least, this offending conduct was directed at some kind of revenge upon the unfortunate Mr Gauci.
4 Whatever the rights and wrongs of the relationship you had with Mr Gauci, it does not in any way excuse your offending conduct. I think it is fair to say that your counsel has not suggested that you seek to excuse your conduct on that basis, although there is some suggestion in the report of Dr Cutajar to suggest that you attempted, somehow, to justify your conduct when you were discussing the matter with her.
5 At about 4.45 am the front door of Mr Gauci's premises was kicked in and the three of you entered his premises. Two of you were carrying baseball bats. Another was holding a torch. It really matters not who was carrying what. This was clearly a joint venture and you were all equally responsible for the offending conduct.
6 Mr Gauci was awoken and was naturally frightened by the appearance of the three of you. Each of you were masked. It was brave or perhaps foolish of him to have sought to tackle you and try and get you to leave the premises. He suspected, it seems, that one of the three of you was indeed you, Jenkins, and he apparently indicated as much during the period when he was trying to get rid of you from the premises. He was not hurt physically as a result of the incident, at least not significantly, but naturally he suffered psychological effects which are spoken of in the victim impact statement.
7 You apparently looked around for some money to steal from him but not finding any you took his mobile phone, at least in part, to ensure that he could not call the police immediately upon your departure.
8 When you were each arrested some time after the events each of you admitted your offending conduct to the police and it seems that you indicated an early plea of guilty to these offences, which is due credit.
9 I have already said in court today that I regard offences of this kind as being particularly serious. The courts in this State have frequently indicated that home invasions of this kind are to be treated as very serious offences and you do not have to think very hard to see why. People are entitled to feel safe in their own homes and when the homes are invaded in this way it violates not just property but them and their space and their sense of safety. It is liable to affect them psychologically for some very significant period of time, if not for the rest of their lives.
10 Ordinarily offences of this kind require courts to impose sentences of imprisonment and impose sentences of years rather than months. If it was not for your youth and the fact that you are essentially of good character, that is undoubtedly the sentence that would have been passed today on each of you. I think you realise that.
11 Neither of you, it seems, suffered from any psychological or physical ailment. Neither of you have been engaged in substance abuse and certainly there was no alcohol or substance abuse involved in this offending conduct. It seems, perhaps putting the best gloss on it, that you were bored, looking for something to do and perhaps you, Jenkins, harboured some ill will towards your previous employer. But as I have said, there is no excuse at all for the offending conduct, and you should be ashamed of what you did. I hope your family and families and friends make you feel ashamed of what you did. I am told that you were both remorseful for what you did. I hope that is true. What you must realise, I think, is that you are not going to be treated leniently on the next occasion if you commit offences of this kind in the future.
12 You are both young men. You, Jenkins, are 22 years of age, 21 at the time of the offending. You, Enery, are 23 years of age, 22 at the time of your offending. The courts have made clear that offenders of your age are to be given special consideration in the sense that it is thought that rehabilitating you, ensuring that as far as possible you do not commit further offences in the future, and reforming you of better options in the long term than sending you to prison where you may find that you learn more about crime than you do about staying away from crime. It is your youth along with your lack of prior convictions that saves you on this occasion. You can't continue to plead that. Sooner or later the patience of the courts will run out if you commit further offences of this kind.
13 I am required to express the denunciation of this court of your conduct and to punish you for the offences, and to the extent that it is appropriate, to deter you from committing from further offences and to deter others from committing offences of this kind. But most importantly, I am required to facilitate, so far as possible, your rehabilitation. It is substantially for that reason that I am persuaded that it is an appropriate course to look to a Community Corrections Order with a requirement that you undergo unpaid community work for a period of time.
14 What I have in mind is to impose a Community Corrections Order which will be for a nominal period of two years and will require you to undertake 150 hours each of unpaid community work. There will be conditions attached to that which essentially require you to report change of address and so on and so forth and stay out of trouble. If you do breach the order, that is you fail to carry out the work that you are required to undertake and/or if you commit an offence punishable by imprisonment during the period of the order, then you can be brought back here, and undoubtedly will be, and you could be sentenced afresh for these offences. That would almost certainly mean a term of imprisonment in substitution. So it is in your interest to comply with the terms of the order.
15 The core conditions are as follows, and I will read them out to you, and I do so because I cannot make the order unless you consent to the order, and that will be consenting to these terms. You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment. You must report to and receive visits from the Secretary of the Department of Corrections during the period of the order or his or her nominee. You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force. So that will be by close of business on Thursday. You must notify the Secretary of any change of address or employment within two clear working days after the change. I think I might say it is probably Friday rather than Thursday, the two clear working days. The offender must not leave Victoria except with the permission, either generally or in relation to a particular case of the secretary. You must comply with any direction given by the secretary that is necessary to give to ensure that you comply with the order. The only other condition that I would attach to the order is that you undergo a total of 150 hours of unpaid community work each. That will be an aggregate order in relation to the two offences and that the period of the order will be for two years.
16 The order will automatically expire once you have completed the 150 hours of unpaid community work. So it is up to you, really, to determine with those who direct you, as to how quickly that you complete the order, all right.
17 Are you willing to abide by the terms of such an order? Yes, I see you nodding, all right. Those orders will be drawn up. In addition, I make the various orders for disposal of property and for compensation. I think the total compensation is in the sum of $553.95. Each of you will be subject to an order in that full sum. It does not mean that you each have to pay that sum, but between you, you are all jointly liable for that sum and that sum will have to be paid by one or more of you in order to satisfy the terms of the order.
18 In addition, you will be required to supply a forensic sample. That will require you to report to the police station nominated in the order, and the orders have been drawn with a view to you attending a police station that is convenient to wherever you are living. When required to do so, upon your attendance, you will be required to provide a scraping from the inside of your mouth. If you fail to, or refuse, to provide such a scraping then the officer concerned may require you to provide a sample of blood and may use reasonable force to obtain that sample of blood, and I am sure that you will not put the police officer to that trouble and you to the embarrassment of that occurring, but I nevertheless am required to warn you that that is an option available to the authorised officer. So those orders will be made.
19 Is there anything else, Mr Ayres, that I have forgotten.
20 MR AYERS: I believe Your Honour just had to declare it was with conviction. I think that was the only other - - -
21 HIS HONOUR: I did, did I not? Yes. In relation to each of the two charges against you, the orders that I make will be with conviction, so there will be convictions recorded against you in respect of each of the two offences as well.
22 I take it that you have explained the ramifications to each of your clients of such an order?
23 MS BURNNARD: Yes, Your Honour, and that will be done again.
24 HIS HONOUR: Yes.
25 MR CHISHOLM: Yes, Your Honour.
26 HIS HONOUR: And that it is pretty important they do comply with the terms of it if they want to see the back of this matter. You will be asked to sign the orders. If you two would like to go up and ensure that they understand what they are signing then I am happy for you to do so.
27 MS BURNNARD: Yes, Your Honour.
28 MR CHISHOLM: Yes, thank you, Your Honour. Your Honour, just while that is happening, I think on the 464ZF application it has Broadmeadows as the police station. I believe, because my client lives in the Yarra Valley, that Lilydale is closer. If Your Honour does not have an issue I think tomorrow the Crown might just redraft to Lilydale and if it could be done in - - -
29 HIS HONOUR: We can do that very quickly, I think. I can certainly cross it out.
30 MR CHISHOLM: If Your Honour is happy with that.
31 HIS HONOUR: And put Lilydale.
32 MS BURNNARD: The same issue, sir, has arisen with respect to the Community Corrections Order. Your Honour's associate is kindly correcting it now.
33 HIS HONOUR: Right.
34 MS BURNNARD: It should really be Lilydale Community Corrections as opposed to Ringwood.
35 HIS HONOUR: Yes. So it's Lilydale for both of you, is it?
36 MS BURNNARD: Yes, Your Honour.
37 MR CHISHOLM: Yes.
38 HIS HONOUR: Yes, all right. Well, that can be done.
39 MR AYRES: I'm indebted to Mr Travers, Your Honour, and I am not aware of the address of the Lilydale Police Station, but hopefully there may be access to information on Mr Travers' system that permits that to be done.
40 HIS HONOUR: Somehow I'm sure he'll find the address.
41 MR AYRES: Thank you.
42 HIS HONOUR: I add that if it had not been for your pleas of guilty, I would have sentenced you each to a term of two and a half years' imprisonment with a period of 18 months to be served before you become eligible for parole, and that is the kind of sentence that you can look to if you are in breach of the order, all right?
43 I have countersigned the Community Correction Orders and the other orders have been amended to incorporate the Lilydale premises.
44 You may now leave the dock, each of you, and you two may be excused.
45 MS BURNNARD: As Your Honour pleases.
46 MR CHISHOLM: If Your Honour pleases.
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