Director of Public Prosecutions v Anderson

[2018] VCC 2116

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 18-02338

DIRECTOR OF PUBLIC PROSECUTIONS

v

KURTIS ANDERSON

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Bendigo
DATE OF HEARING:	29 November 2018
DATE OF SENTENCE:	29 November 2018
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2018] VCC 2116

REASONS FOR SENTENCE

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Subject:Criminal law – sentencing – aggravated burglary and commit indictable offence whilst on bail – early plea of guilty – combination of jail to be followed by a Community Correction Order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Maguire	John Cain, solicitor for Public Prosecutions
For the Accused	Ms E Miller (Plea) Mr J Mildren (Sentence)	Victoria Legal Aid Bendigo

HER HONOUR:

1Mr Anderson, you have heard my conversation with Mr Mildren.  Do you accept that you understand what are the mandatory conditions of any Community Correction Order?

2OFFENDER:  Yes, I do.

3HER HONOUR:  You do.  And you understand what happens in the event that you contravene the order?

4OFFENDER:  Yes. 

5HER HONOUR:  You would be dealt with in respect to the contravention and be brought back before me in relation to being - and be resentenced in respect to these offences.

6Ultimately, I have come to the conclusion that a combination sentence is appropriate in the circumstances of this case, and I am satisfied that a properly conditioned Community Correction Order combined with the gaol term that you have already served of 98 days is appropriate punishment.

7What I propose to do is to release you on a Community Correction Order that will be of three years' duration.  You will have supervision and there will be special conditions that you perform 200 hours' community work, and that you undertake treatment and rehabilitation for drug abuse and dependency, and offence behaviour programs.  And there will be a recommendation that hours undertaken for treatment and rehabilitation be credited towards the community work condition.  Do you understand that?

8OFFENDER:  Yes, I do.

9HER HONOUR:  All right.  And do you consent to such an order being made?

10OFFENDER:  Yes. 

11HER HONOUR:  And I have already described to you what would happen if there are any consequential contraventions.

12It is very important at this stage, Kurtis, that you take up this opportunity. 
You are a young man who has had to deal with real trauma in your life, but the current pattern of behaviour that you are demonstrating will, if it continues, just lead to one place and that is further gaol.  For a young man like you with your potential, that would be tragic not only for yourself individually but also for the community.

13So I really urge you to take up this opportunity.  You have obviously in the past impressed other people, and I am taking a merciful approach to your case having regard to all the factors, but I want you to genuinely commit to this Community Correction Order.  All right?  And give it your utmost. 

14I will commence with my sentencing remarks.  They do take a little time, so you will just have to remain seated.

15Kurtis Anderson, you have pleaded guilty to one charge of aggravated burglary committed on 15 August 2018 when you entered as a trespasser a building, 428 Mitchell Street, Echuca Village, with intent to steal, armed with a knife. 
You have also pleaded guilty to a related summary charge, summary charge two, commit indictable offence whilst on bail.

16The charges are serious, and that is reflected in the maximum penalties prescribed by Parliament, and that is 25 years' imprisonment for aggravated burglary and 30 penalty units or three months' imprisonment in respect to the summary charge. 

17I shall now proceed to sentence you on the basis of the prosecution opening that was tendered at the plea hearing, there being no dispute as to the factual basis upon which the learned Crown prosecutor opened this matter.

18Briefly, in the early hours of 15 August 2018, approximately 4.15 am, you entered a semi-rural residential property located at 428 Mitchell Road, Echuca Village.  The property was occupied by Lynette Wills and her husband Brian, both of whom are well-known to you and your family.

19You initially tried removing a flyscreen from the front bedroom window and tried to force that open, but you were unsuccessful.  You then walked to an unlocked garage door and entered the garage and rifled through some vehicles that were there.

20You then walked into an enclosed sun room, and with a knife, you removed a small rubber cover that was on the sliding door and inserted the screwdriver into an internal locking mechanism on the sliding door to unlock the door, but you were unsuccessful.  You then tried removing the flyscreen off the kitchen window and using the screwdriver you tried to and force open the window.  You were unsuccessful.  You then smashed the window.

21Mrs Wills was woken by the noises, and at first, assumed it was either the wind or a cat.  She got up to investigate and was confronted by you standing outside her kitchen window.  She noticed that the flyscreen was off and the glass in the window was broken.  You were wearing a beanie or a hooded top and you demanded aggressively that she give you the keys, referring to her car.

22That request was refused and she shouted to her husband to assist her, following which you fled through the garage and out of the property.  She called 000 and police attended.

23In the course of the aggravated burglary, when you smashed the window, you suffered a large laceration to your right forearm and severed your radial artery, nerves and tendon on your right arm.  You later underwent surgery to repair those wounds at the Bendigo Base Hospital, and you are still to have further operative treatment in respect to a tendon repair.

24Police arrested you following your discharge from hospital on 23 August 2018.  You were interviewed and made admissions in the record of interview as to your presence at the property, but made up a false and elaborate story where you sought to deflect blame to another unknown male.  You now admit that those facts are false, and that the facts are as outlined in the prosecution opening.

25You admitted your prior criminal history.  It is limited, but relevant.  Both of the two court appearances were recorded in 2018.  Of relevance, you have convictions for burglary and theft, criminal damage, driving offences, and contravention of family violence intervention orders.

26When aged 20, you were dealt with in respect to a large consolidation of matters at Bendigo Magistrates' Court on 22 March 2018, and on that occasion, you were convicted and placed on a nine-month Community Correction Order. 
This offending is in contravention of that order.  I also note that this offending was committed whilst you were on bail entered on 3 August 2018, for contravening a family violence intervention order, and that is a further aggravating feature.

27The impact of your offending has been profound, and Mr Maguire, the prosecutor, read into the transcript the contents of Mrs Wills' victim impact statement.

28She will never forget the image of someone trying to break into her home by smashing the windows and demanding the keys.  She was very frightened and worried about what could possibly happen if the perpetrator gained entry. 
She did not know whether that person had a weapon or was consumed with drugs.  Her sleeping pattern has been disturbed as well.  She is very hypervigilant whenever she hears a noise, or her dogs barking.  She gets up and checks on all windows for peace of mind.

29She was very disappointed to hear and find out that you were the intruder - someone whom she knew.  This added to her devastation, as she has known your family for a long time. She made the comment that she can only imagine what your father Rowan would have said to you about your crime, and that it was not a great way to honour his memory.

30Financially, it has cost her over $3,000 with repairs and installing security lights, extra locks, and doors. 

31In sentencing you, there is a real need to denounce your behaviour.  Members of our community are rightly concerned about this sort of behaviour.  By your actions, you interfered with the privacy and security of both Lynette Wills and her husband.  Such behaviour must be condemned and a message needs to be sent out that if you commit such offending that stern punishment is warranted.  General and specific deterrence and protection of the community are significant factors in your sentence.

32I have been told something of your personal history and background.  You were raised by your parents in the Rochester/Bendigo area.  Your father, Rowan, died in 2013 from the effects of cancer when you were aged only 16. 
You watched your father go from being a fit, healthy man to being dead within two months.

33You are a person who has had only limited formal education.  You completed Year 10 at Rochester High School.  Notwithstanding your limited education, you have been successful in obtaining a number of jobs, and you have been consistently employed since leaving school.

34You have worked at a tomato farm, you started a bricklaying apprenticeship, you worked at dairy farms, and in a tyre shop.  For one year, you were working casually with your brother who runs a tiling business. In February of this year you commenced work in a concreting apprenticeship with Priority Contractors.

35Sadly, because of your history of substance abuse, your apprenticeship with Priority Contractors ceased. 

36You began using cannabis occasionally through high school, but particularly so after the death of your parent.  When you left school, you started using methamphetamines and initially started using socially but eventually you were using daily.  The inextricable link between your daily use of ice and also your offending is noted.

37You have been in a relationship with Lisa Callow since January 2017.  She is an older person who has two children aged five and ten.  Your relationship has been described as being a volatile one, and you have convictions recorded for contravening family violence intervention orders that relate to her.  I note that the order is due to expire this Friday.  You have expressed a hope through your counsel that you wish to return to live with Lisa and the children and to be a better role model to those children.  She is currently living with her father in Kyabram. 

38I noted that in the earlier proceedings, you were assisted through the Second Chance Program here in Bendigo.  That is a program that works with connecting long-term jobseekers with employers. A report or a reference from Chris Moore from that organisation attests to your enthusiasm and personality. 
He said, at that time, you impressed him as being somebody who had a bright future ahead, whose attitude was positive, respectful and goal-orientated.

39And in addition, I have had an opportunity to read a reference from Lucas House, who is the owner/manager of Priority Contractors who gave a reference on 22 March 2018.  He confirmed your apprenticeship, and he also noted that you were a person who impressed, who could communicate well, showed initiative on the worksite, and had positive skills.  He was positive about your future development.

40Sadly, because of your engaging in drug use again, you destroyed your opportunity with Priority Contractors and lost that job.  It was in that context where you had suffered loss of your job, a breakdown in your relationship and daily use of ice that this further offending occurred.  Whilst giving an explanation for your behaviour, it in no way excuses your behaviour.

41You have some subsequent matters that are yet to be dealt with in relation to some further offending.  There are two briefs involving matters of breach of family violence orders and trespass, burglary and theft, persistent family - breach of family violence order, stalking, using a carriage service to harass, and other breaches of family violence orders.

42Those matters are yet to be resolved, and are pending at the Echuca Magistrates' Court, and are to be dealt with at the same time as the contravention of the Community Correction Order.  Those matters are listed, I understand, for 8 January 2018.

43In anticipation of the Contravention proceedings, a report has been prepared from Grace Sheahan who is the case manager at Bendigo Community Correctional Services. The report says although your history is limited you have been placed into contravention on the basis of alleged further offending, which if proven, contravenes your order.

44She recommends, given your young age and limited criminal history, should you not be sentenced to a term of imprisonment in relation to the alleged further offending, that it is respectfully recommended that the contravention be proven and the order be varied to recommence from this date with the addition of a judicial monitoring condition.

45In sentencing you, I have had regard to the matters put in mitigation on your behalf by Ms Miller.  In particular, I have had regard to the fact that you entered a plea of guilty at the earliest opportunity at committal mention.  There is real utility in your plea.

46You spared the witnesses, especially Mrs Wills and her husband, from being cross-examined at both trial and committal.  You have spared the community the expense and inconvenience of a trial.  Through your plea of guilty, you have indicated your willingness to accept responsibility for your wrongdoing. 
You have facilitated justice, and your sentence will be discounted accordingly.

47I further accept that your plea of guilty is indicative of genuine remorse, notwithstanding your initial denials.  You now have developed insight into your offending behaviour through the opportunity to reflect on your behaviour whilst you have been in prison, and the courses undertaken whilst in prison.

48You personally made an apology to the victims in the court room at the plea hearing, and I am satisfied that that is genuine and a profound acknowledgment on your behalf that what you did was wrong.

49You are a relatively youthful offender.  You are only 21.  You have, in the past, demonstrated a real potential for reform and it is important that adult imprisonment of a youthful offender be avoided if possible, especially where a person is beginning to appreciate the effect of past criminality.

50I further have had regard to the fact that you suffered serious injury to your right arm as a direct consequence of your offending. I am satisfied that that extra-curial punishment is a mitigatory factor.  You are to undergo further tendon repair surgery in the future.

51I have had regard to your expressed remorse, your expressed commitment to remain abstinent from drugs, and your acceptance of assistance in respect to your drug problem and other offending behaviour.

52Ms Miller sought that an order be made that you be released on a combined order being the equivalent of gaol time served and a Community Correction Order. 

53Mr Maguire, the prosecutor, submitted an immediate term of imprisonment with a non-parole period being fixed is the most appropriate disposition. He submitted that a combination of gaol to be followed by a Community Correction Order would not be appropriate punishment having regard to the seriousness of the offending, your antecedents, and the particular features of this offending.

54Ultimately, I have concluded that a properly conditioned Community Correction Order, combined with a gaol term of 98 days, being equivalent to time served, is appropriate punishment.

55I have had regard to the principles set out in Hogarth v The Queen[1], and Bradshaw v The Queen[2], together with the annexed cases, and I have considered current sentencing practices with respect to aggravated burglary. 

[1] (2012) 37 VR 658

[2] [2017] VSCA 273

[3] (2014) 46 VR 308

It was recognised by the Court of Appeal in the guideline judgment of Boulton v The Queen[3] that a Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, and the court specifically referenced as an example aggravated burglary.

56The court stated that the sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment whilst affording the best prospects for rehabilitation.

57I have had regard to s.5(4C) of the Sentencing Act.  That section places an obligation on a sentencing judge not to impose a sentence that involves confinement unless the purpose or purposes for which sentence is imposed cannot be achieved by a Community Correction Order.

58Overall, I have had regard to the genuine efforts that you have made to address your underlying offending behaviour whilst in custody on remand.  You have completed an Anger Management Program, a Leadership Program, as well as programs in First Aid and Food Handling.  You have enrolled in a Consequential Thinking Program, and had Drug and Alcohol Assessment - although you have not yet had the opportunity of counselling.

59You have been abstinent from drugs since you have been on remand, and you are now thinking more clearly.  Through your apology that you expressed in court, you openly acknowledged that what you did was wrong.  You have taken time to properly reflect, and you are truly sorry for the turmoil and harm that you caused Mr and Mrs Wills.  Your expressed apology will be communicated to them and also your willingness to pay for the damage that you have caused.

60Ultimately, with appropriate supports and a commitment on your part to remain drug-free, I consider that you have sound prospects of rehabilitation. 

61As was stated in Boulton, prison is a sentence of last resort. As s.5(4) of the Sentencing Act makes clear, such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of an offender.

62You have been assessed as being suitable for a Community Correction Order, and today you have communicated to the court that you understand the core conditions of such an order, and that you further understand the implications for contravention, and you consent to the making of the order.

63The terms of the Community Correction Order are tailored to your particular circumstances and the cause of your offending.  The remarks of the President of the Court of Appeal in the case of DPP v Tokava[4] are apt, where he says that:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interests will be best served by that course.  This court should seek to promote public understanding of the fact that - apart from the interests of the individual whom it is sought to rehabilitate, an important interest itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."

[4] [2006] VSCA 156, [21]

64Such an order will offer you the best opportunity to continue your rehabilitation in the community and to maximise your future prospects.  Gaol has been a salutary experience for you, but has importantly provided you with a catalyst to change.  You have had the opportunity to think about your situation. 
You understand fully the link between your drug-taking and offending.

65You understand also that you need help and assistance to deal with your traumas from the past and the grief associated with the loss of your father, and father figure in your life, as well as your anger issues.  I noted that you have expressed to the author of the Community Correction report that anger has been an issue with you since the death of your father, and I urge you to please follow up with your counselling insofar as that is concerned, in respect to both the grief aspect and also anger management aspect.

66Mr Anderson, I do believe that you are a young man who does have very real potential for the future.  You have demonstrated that in the past.  But you have just got to grasp this opportunity and make the most of it.

67In sentencing you, I must impose just punishment.  I will now make the formal court order, so I ask that you please stand.

68In respect to Charge 1, the aggravated burglary, you will be convicted and sentenced to 98 days' imprisonment, which is equivalent to the time served, to be followed by a Community Correction Order of three years duration with supervision and the following special conditions; that you perform 200 hours of unpaid community work; that you undertake treatment and rehabilitation for drug abuse and dependency, and offence behaviour programs.  And there will be a recommendation that hours undertaken for treatment for rehabilitation be credited towards the community work condition.

69On summary Charge 2, commit an indictable offence on bail, you will be convicted and sentenced to one month's imprisonment.  I will direct that that be served concurrently.  Ordinarily, it would be cumulatively on the sentence imposed on Charge 1.  But in the circumstances, I am directing otherwise.

70You have consented to the order being made.  You have had explained to you what happens as a consequence of contravention, and I am satisfied that you understand the nature of the order, and you are consenting freely to that order.  And that will enable your rehabilitation to continue to progress in the community.  But it is conditional release.  You understand that?

71OFFENDER:  Yes, Your Honour. 

72HER HONOUR: You do. All right. I make the following declaration, pursuant to s.6AAA of the Sentencing Act:  but for your plea of guilty, you would have been sentenced to two years' imprisonment to serve nine months.

73And I make the declaration that you have served 98 days pre-sentence detention, and direct that be entered into the records of the court.

74I make the disposal order sought, and I make the compensation order sought in the sum of $987.20 in favour of Mrs Lynette Wills. 

75That concludes my sentencing remarks.  I do not think there was anything else that needs to be attended to?

76MR MAGUIRE:  Your Honour, would Your Honour - this is a minor matter, but my recollection was that the invoice spoke of the amount that Your Honour just spoke about plus there was a GST figure on top of that, Your Honour. 

77HER HONOUR:  Was there?

78MR MAGUIRE:  I'm sorry, yes.

79HER HONOUR:  What does the actual order say?  I just took it from the invoice.

80MR MAGUIRE:  Yes.  The invoice, Your Honour sees the invoice figure is
a thousand dollars or so.

81HER HONOUR:  Have you got the order?

82MR MAGUIRE:  I have got it here somewhere. 

83HER HONOUR:  The order?

84MR MAGUIRE:  Yes, thank you.

85HER HONOUR:  The OPP provided an order in the sum of $989.27.

86MR MAGUIRE:  Yes, Your Honour. 

87HER HONOUR:  Is that wrong?

88MR MAGUIRE:  Your Honour, I did, when speaking of the opening, I did note that there was an addition of GST to that figure, making it ‑ ‑ ‑ 

89HER HONOUR:  Perhaps if your instructor can amend it ‑ ‑ ‑ 

90MR MAGUIRE:  We'll amend it, Your Honour, yes.

91HER HONOUR:  ‑ ‑ ‑ and the actual figure - I have not got the invoice here.

92MR MAGUIRE:  It's $1088.20, Your Honour.

93HER HONOUR:  All right.  One thousand and ‑ ‑ ‑ 

94MR MAGUIRE:  Eighty-eight dollars.

95HER HONOUR:  ‑ ‑ ‑ eighty-eight dollars and?

96MR MAGUIRE:  Twenty cents.

97HER HONOUR:  Twenty cents.  All right.  I will amend the final order to read that Mr Anderson pays to Lynette Anne Wills compensation in the sum of $1088.20.

98MR MAGUIRE:  Thank you, Your Honour. 

99HER HONOUR:  Sorry about that.

100MR MAGUIRE:  Not at all.  Sorry about this, too, Your Honour.

101HER HONOUR:  All right.  We are still having some interaction with the technician in Melbourne.  It will not take long.  I will stand down and
Mr Anderson, you will just have to be patient.  He can be released from the dock and he can sit with his counsel.  When the order is finally printed, I will sign it and then we will get you to sign it, all right?

102MR MILDREN:  If the court pleases.  If Your Honour pleases.

103(At a later stage.)

104HER HONOUR:  All right.  Mr Anderson can be released from the dock, he can come up and sign this order.  It is now signed.  A copy will be provided.  Is there any problem with Mr Anderson being released?

105MR MAGUIRE:  No, Your Honour. 

106HER HONOUR:  No?  All right.  We will make a copy and then we will provide that to you.

107(At this stage the court proceeded with another matter.)

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