Director of Public Prosecutions v Armstrong

[2023] VCC 825

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01782
Indictment No. N10297472

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW ARMSTRONG

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2023
DATE OF SENTENCE:	22 May 2023
CASE MAY BE CITED AS:	DPP v Armstrong
MEDIUM NEUTRAL CITATION:	[2023] VCC 825

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:          Guilty plea – Two charges of aggravated burglary – One charge of burglary – One charge of theft – Summary charge of resist police – Young age of offender – Drug and mental health issues - Principles of Verdins – Good family support – Relevant criminal history

Legislation Cited:         Crimes Act 1958 s 77, s 76, s 74; Sentencing Act 1991 s 83A, s18, s 6AAA; Mental Health Act 2014

Cases Cited:Worboyes v The Queen [2021] VSCA 167; Akoka v The Queen [2017] VSCA 214; R v Verdins & Ors [2007] VSCA 102

Sentence: 277 days imprisonment combined with a CCO of 2 years duration. S 6AAA: 30 months with a minimum of 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Elishapour	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Tom	Balmer & Associates

HIS HONOUR:

1

Matthew Armstrong, you have pleaded guilty to two charges of aggravated burglary, one charge of burglary, one charge of theft and the related summary offence of resisting police.  The maximum penalty for aggravated burglary is

25 years’ imprisonment; for burglary,10 years’ imprisonment; for theft, 10 years’ imprisonment; and for resist police, six months’ imprisonment.

2The circumstances of your offences are set out in the Prosecution Opening which was tendered on the plea and read in open court.  I will summarise the circumstances.

Circumstances of the offending

3On 13 February 2022, at about 12.30pm, you entered the residence of Robert Minto at Hillside Avenue, Boronia.  You were in company with an unidentified female.  You entered the property by jumping over a fence and entered the house via an unlocked rear door.

4Mr Minto was sitting in the front office when you entered and he was alerted to your presence when he heard something drop in the lounge room.  He went into the lounge room and found you and the female standing inside.  He confronted the two of you and demanded to know why you were in his house.  He went back to his office to get his phone.  When he came back to the lounge room, you were still there.  You told Mr Minto you were homeless and you were not there to rob him.  Mr Minto saw that the packaging of a Nintendo Wii console had been removed from its storage place and the contents were on the floor.  He asked you about the Wii console, which you had handled, and you said the consoles were worth a fortune.  He asked you and the female to open your bags.  You did so.  There was no stolen property that Mr Minto could see.

5Mr Minto ushered you out the rear door and the pedestrian gate.  Mr Minto asked you for your identification and you produced a WorkSafe card with your name and date of birth.  The female provided a false name.  You and the female then walked away.  This is the basis of Charge 1, aggravated burglary at Hillside Avenue, Boronia.

6About 12 hours after the first aggravated burglary, around 1.00am on 14 February 2022, you forcibly entered a house at Sylphide Way, Wantirna South.  This was the home of the Shi family.  You were in possession of a knife at the time you entered the residence via a side awning window.  You pushed the internal flywire out and climbed in, causing some minor damage to the flywire and the chain winder.

7You then walked to the back bedroom and opened the door.  You were confronted by Mr Xiaoyong Shi, who had been asleep but had woken up.  He jumped out of bed and you started to walk away.  He told you to stop and stand still, trying to scare you, and alert other members of his family.  You walked back into the dining room and he followed you.  His wife, Zhling Tan, and son, Chengyu, woke up.  Chengyu walked into the dining room and saw you there holding a knife in your right hand.  Chengyu repeatedly told you to put the knife down.  Zhling tried to ring Triple 0 but was so scared she dialled 001 instead.  She ran to the bathroom and yelled out of the window for help.  You put the knife in your waistband and then Chengyu told you to put it on the dining room table, which you did.

8Chengyu called Triple 0 and told you to leave.  You said something like, “I’m sorry, I’m homeless”.  You opened the dining room side door and left.  Police found the knife when they attended soon after, and your DNA was on the knife.  This is the basis of Charge 2, aggravated burglary.

9About 45 minutes later, you entered the rear yard of an address in Blind Creek Lane, Wantirna South.  This was the home of Ms Antra Varma.  You walked down the side of the house into the backyard and then went into the shed.  Inside the shed, over about 20 minutes, you stole a lawnmower, power tools and a green canvas bag containing personal documents of Ms Varma.  She heard some noises and saw the torchlight and went out to investigate.  She had been watching television.

10When she walked out the front door, Ms Varma saw you and asked what you were doing.  You said you were homeless and thirsty.  You gave a false name, claiming to be from Croydon and then Boronia.  You asked Ms Varma for $100 so you could find somewhere to stay that night.  You also asked for some water.  Ms Varma gave you a bottle of water and then went back inside.  The next morning, her mother saw the back shed was open and that property to the value of $2,379 had been stolen. 

11The Prosecution Opening describes how you met up with a person named White after you left Ms Varma’s address.  Thereafter, you went to 7-Eleven where some sort of confrontation took place with another group of males during which you admitted you had just stolen a lawnmower and some tools and offered to sell them to the group. 

12At 2.25am, Leading Senior Constable Knight with a police dog, Zeus, saw you in the vicinity of the 7-Eleven and observed you hiding a satchel bag in a bush.  Leading Senior Constable Knight approached you and arrested you for burglary.  You initially said 'Nah' and began moving towards the satchel you had hidden.  Again, Leading Senior Constable Knight told you that you were under arrest, and told you to get on the ground.  You continued to ignore repeated directions and instead kept moving towards the satchel.  You then ran.  Zeus was deployed and chased you until he was able to stop you by biting you on the lower right leg.  Other police then arrived to assist in arresting you. 

13Whilst police were trying to arrest you, you physically resisted and refused to comply with directions.  Police were forced to wrestle with you until they could place handcuffs on you.  This is the basis of the summary offence of resisting police.

14When you were interviewed you told police that you only went into the house because you were homeless and you had consumed Xanax, alcohol and Ice.  You said you had purchased the knife you had in your possession in the aggravated burglary earlier that afternoon.

15You were taken to the Dandenong Hospital by ambulance for treatment for the dog bite.  At the hospital, you made further admissions.  Ultimately, you said you wanted to write a letter of apology to Ms Varma and said, “I don’t deserve this life, I’m a troubled kid. But, like, I’ll make it up to everyone and I swear to you – I swear to you”.

Victim impact

16Three victim impact statements were tendered in this matter from Mr Shi, his son, Chengyu, and his wife, Zhling Tan.  Mr Shi, in his victim impact statement, said since the day of the offence he ‘has had to check many times for all the windows and doors every night’ before he goes to bed.  He says he wakes up several times to check if something is happening outside, and he worries, 'These guys will be coming back'.

17He also says he feels someone standing beside his bed when he is sleeping and that his sleep is much lighter than it was before.  He says he has not been able to have a good sleep for a long time.  He says that the scenes of the burglary always pop up in front of him, which makes him stressed, nervous and anxious.

18He worries about his wife and his son and their safety at home and he has trouble focussing on his employment.  He says the memories of the offence severely affect his sleep, his work and his mental wellbeing.  He says he is not sure how long the impact of your offending will last.

19Ms Tan says that the burglary happened almost a year ago, but she still constantly worries about her family's safety.  She feels her husband and her son might die.  She says she feels fear and thinks about what you might have done with the knife.  She is worried that it will happen again and she never feels safe in her home.

20She says, 'Your home is meant to be the safest place, but this happening to us has changed how I feel about our home.  We have lived here for 11 years feeling safe, but to be woken from sleep, the fear is so bad and it is so hard to forget this.  No one expects this to happen in their own home'.

21She has been having counselling and is coping better now, but still has trouble falling asleep.  She wakes up at any noise and sometimes has nightmares, feeling someone is standing beside her bed.  She has trouble removing the incident from her memory and pictures pop up in her mind.  She has had trouble concentrating at work since the incident.  Before the incident she was a confident person, but no longer feels as confident and is worried and scared.

22Chengyu Shi says that because of your offending he has had trouble concentrating during study and work and has lost his interest in many hobbies that he used to participate in, including watching movies, walking and playing video games and others.  He says that he is worried at night-time as a result of the offending.  He has had treatment for the psychological impact of the incident, and he is slowly progressing back to his normal life, but that when he is reminded of events such as your offending, the traumatic feelings come back and they last for a while.

23He says that ever since this incident he has not felt safe at home, especially because his room is at the front of the house. 

24It is apparent from these victim impact statements that your intrusion into their house has had long lasting effects, Mr Armstrong.

Gravity

25The maximum penalties for aggravated burglary and burglary reflect their seriousness. All the offences you committed are serious, but particularly Charge 2, where you produced a knife in front of Mr Shi and his family, having broken into their home at 1.00am. Your entry in possession of a knife at that hour was a complete violation of their right to feel safe in their home. Creeping around the house, you opened the bedroom door. Mr Shi woke up to see a male intruder, you, in the doorway.  After this, your incursion into their residence became a very frightening confrontation for Mr Shi and his family.

26As I have just detailed, they have spoken about the ongoing impacts of your conduct which have been substantial and unsurprising.  I do not believe you were intent on a confrontation of the type which took place, but in purchasing and possessing a knife you must have given some thought to the possibility of coming across the occupants once you were inside and that is why you took it with you.  Such an incident and its impact on the victims was a likely outcome of your behaviour.

27Similarly, Charge 1 involved an intrusion where Mr Minto was disturbed in his home by you and the co-offender.  Whilst not as serious, similar considerations apply which also make that a serious offence.

28In Charge 3 and 4, you were present on Ms Varma’s property for a length of time and in circumstances where she became aware of your presence. You stole a not insignificant amount of property.

29All of that said, there is a desperation and hopelessness to this offending consistent with the contextual circumstances relied on by Mr Tom, namely that you were homeless and transient and using drugs and perhaps alcohol every day at that time.  You also had an unmanaged mental illness.  None of this offending appears to have been well planned or executed with any professionalism.

30Fortunately, when challenged by the residents of the houses you quickly backed down, preventing the circumstances from escalating any further. It seems to me clear you were drug affected and not thinking in any way clearly in this spree of burglary offences.  Given your age and your situation at the time of this offending I have moderated my assessment of your moral culpability to reflect these matters.

31You have a criminal history all of which involves offences dealt with in 2021. Your previous convictions mainly involved dishonesty offending but you do have a conviction for aggravated burglary, unlawful assault and other offences in November 2021, for which where you received a community correction order which you were on at the time of this offending. The fact that you were on a community correction order is an aggravating feature in this case. 

32For offending such as this, general deterrence, denunciation and just punishment must be given importance in deciding the appropriate sentence. Specific deterrence, that is the need to send a message to you that serious consequences will follow further offending, must also be given some importance particularly considering your criminal history.

33You were remanded in custody in respect of these matters until being granted bail on 27 June 2022.  You were bailed to reside at a residential rehabilitation service called Birribi, or as otherwise directed by YSAS.  You were discharged from Birribi on 15 August 2022 because of non-compliance.  On 16 August 2022, you contacted the police informant in this matter and then presented yourself at a psychiatric facility.

34On 22 August 2022, you were arrested and remanded in custody.  The committal hearing proceeded as a straight hand-up brief on 3 October 2022, and then the matter later resolved in October and you entered your plea at an initial direction hearing on 2 November 2022.  You were granted bail again in December 2022, but with a condition that you were not to be released until 10 January 2023.  After you were released, you spent time in a psychiatric facility as an involuntary patient before you were again admitted to Birribi.  I am told you are still subject to orders under the Mental Health Act and are now under a community treatment order.

35In total you have been in custody for 277 days in relation to these charges. 

36The plea hearing in this matter took place on 17 March 2023. On that day, I ordered a deferral pursuant to s 83A of the Sentencing Act 1991 for the purpose of further assessment of your prospects of rehabilitation and for you to continue participating at the Birribi Rehabilitation Centre in Eltham. On 9 May 2023, I received a letter from Kathryn Lauder, a clinical coordinator at Birribi, which said that at that time you were due to enter stage 3 of the Birribi Program.

37The letter said that once in stage 3, you will be recognised as a leader and role model within the Birribi community.  The core of stage 3 is to prepare you for transition back into the community.  There are a series of staged leaves where you will stay with your parents in Croydon South and provide drug screens and breathalyser tests on return to Birribi.

38I decided, in the circumstances, to vary your bail to allow you to participate in the staged leaves and bring forward the return date of the deferral today so that when you return home you will be subject to supervision on a community correction order.  Today I have received a further letter from Ms Lauder setting out what is now proposed for you.

39You have successfully completed the Birribi program and I am told and I accept that from tomorrow you will return to live with your mother and father and the rest of your family.

Personal circumstances

40You were born in June 2002.  You are now 20 years old.  You were 19 years old when the offending occurred.  Your parents, Marcus and Justine, who are present in court, remain married and live together with your younger sister, Dana, who is 19 years old.

41You struggled at school.  You were diagnosed with ADHD and your education was hampered by problems with inattention and distraction, leading to behavioural issues.  You left mainstream school in Year 9.  You were sent to alternative schools with a focus on mental health and behavioural issues such as Groupworx and Berry Street School.  Since you left school, you have had some casual employment in retail and labouring roles, but you have been unable to maintain stable employment. 

42When you were 15 years old an incident occurred in your family which is set out in the defence submissions after which you rebelled and absconded and associated with negative peer group influences.

43You started smoking cannabis at 15 years old. You were still using cannabis daily right up until you were remanded in custody for these offences.  At the age of 18 you started using methylamphetamine, which you were also using every day at the time you were remanded in custody.  You have also used Xanax excessively since you were 16 years old.  You have said that your drug use was social at the beginning but, over time, you have used drugs to deal with emotional issues.  Your drug use was clearly connected to your offending in this case, and I accept you were under the influence of drugs at the time of the offences.

44You suffer from bipolar disorder and have a long history of mental illness dating back to your adolescence.  As a teenager you spent time as an inpatient at the Box Hill Hospital Adolescent Unit and you have also had engagement with the Chandler House Child and Youth Mental Health Service.  You have been the subject of involuntary treatment orders as an adult. I have referred to the fact that you were an involuntary patient in January and February of this year.

45At the time of the plea, you were receiving Lithium and Olanzapine and also a monthly depo injection of Aripiprazole, which remains the medication that you are taking.

46You have been assessed by clinical psychologist, Mr Michael Bilyk, who says that incarceration could potentially compound feelings of stress, anxiety and depression, and that your mental health could also deteriorate in prison.  He said that given your trauma history, vigilance relating to threats of violence in prison and/or threats to integrity to self could also lead to mental health decline.  Mr Bilyk says in his report that your time in custody is therefore likely to be more difficult than for an individual without your mental health and trauma history.

47Mr Tom submitted that limbs 5 and 6 of Verdins[1] apply.  Mr Tom submitted also that I should moderate general deterrence, having regard to your age and immaturity, and that rehabilitation should be the primary sentencing consideration for these offences.  I accept these submissions and I have taken these matters into account as mitigating factors.

[1] [2007] VSCA 102

Guilty plea

48I take into account your plea of guilty.  It was not a plea of guilty at the earliest opportunity, but no witness was ever cross-examined in this matter, and as I follow the procedural history it resolved soon after its entry into this court.  The guilty plea has significant utilitarian benefit.  You have saved the victims the ordeal of having to relive the experience by giving evidence and you have saved the court the resources involved in running a trial.

49The utilitarian value of your plea is heightened in the current circumstances where this Court still faces a backlog of trials as a result of the suspension of trials during the pandemic.  I apply the principles espoused in Worboyes[2] and other cases.

[2] [2021] VSCA 169

50I accept that you have taken responsibility for your offending and that your plea indicates a willingness to facilitate the course of justice.  I accept your plea is also indicative of remorse for the offending.  You additionally expressed your remorse to Mr Bilyk as set out in his report.  You felt ashamed of your behaviour and had an appreciation of the impact of your offending upon the victims.

51You were in custody during the restricted conditions that prevailed in the prison system as a response to the COVID-19 pandemic.  Your access to programs, courses and work was restricted, as was your ability to contact your family.  I take into account that your time on remand was more onerous due to the prison environment that prevailed at that time. I also accept that given your age and appearance you were the victim of assaults and an attempted sexual assault whilst you were on remand. 

Prospects of rehabilitation

52In prison you completed some rehabilitation programs, which I take into account.  The coordinator of your NA meetings, Mr David O’Halloran, said in a letter that you showed a genuine willingness to participate and you acknowledged that drug addiction was at the core of your offending.  He said he believes that your commitment to recovery is genuine. 

53You have spent a considerable period in Birribi and you have progressed to the point where you are now able to transition you back into the community.  Birribi is an inpatient residential facility where patients are not free to come and go as they please. In my opinion, the principles in the case of Akoka[3] therefore have application and I have had regard to the time you have spent at Birribi as an additional punitive consequence of your offending.

[3][2017] VSCA 214

54In my opinion a process of rehabilitation has commenced. Although in the community correction order assessment report you are said to be a high risk of reoffending, given your age and the steps you have taken there are good reasons to be optimistic about your prospects and I accept the submission that rehabilitation should from this point be the primary focus in the sentencing process.  You are young, you are participating in rehabilitation, and you have family support.

55In sentencing you I have balanced the gravity of the offending and the need for denunciation, deterrence both general and specific, and just punishment against the need to facilitate your rehabilitation.  I am satisfied that the period of 277 days, combined with the periods you have spent as an inpatient at Birribi are sufficient for those more punitive purposes of sentencing, and that I should now look to an order that attempts to facilitate your rehabilitation.  Accordingly, the order that I propose to make is a combined order of imprisonment and a community correction order for the charges on the indictment.

56On the charges on the indictment of aggravated burglary, two charges, and burglary and theft, I sentence you to 277 days, and you are convicted and placed on a community correction order for two years with the following conditions: supervision, drug assessment and treatment, mental health assessment and treatment, offending behaviour programs as directed and judicial monitoring.

57With respect to mental health assessment and treatment I anticipate that Corrections will work in with your community treatment order and have regard to the Forensicare mental health assessment report that I have received.

58Pre-sentence detention in this matter is 277 days, which will be deducted from the prison sentence that I have imposed pursuant to s 18 of the Sentencing Act.

59Pursuant to s 6AAA of the Sentencing Act, the sentence that I would have imposed had you pleaded not guilty is 30 months' imprisonment with a minimum non-parole period of 18 months.  Do you understand all that? You have to sign this document.  Are you prepared to consent to a community correction order?

60OFFENDER:  Yes, Your Honour.

61HIS HONOUR:  Do you understand what the core conditions of a community correction order are?

62OFFENDER:  Not really.

63HIS HONOUR:  I will tell you what they are in summary.  Every correction order has core conditions.  They are that you have to attend at the Community Corrections office within 48 hours at Ringwood.  If you just do not do that you would be in breach of your order.

64You also have to abide by any lawful directions you receive from Corrections.  You have to accept visits and attend for visits with Corrections as directed.  You cannot change your address without telling Corrections either, and if you want to leave Victoria you have to tell Corrections. 

65There are some other more technical core conditions about complying with the regulations but I will not go through all of those.  Mr Tom will explain all these core conditions.  The primary core condition though is that you do not reoffend.  So, if you reoffend in two years with an offence punishable by imprisonment you breach the correction order, and Corrections would have no choice but to bring you back before me on a breach.

66Then I have some choices, but the choice that looms largest is a resentencing.  I go back to the beginning and give you a sentence for these offences again, taking into account the 277 days, but you would be likely to spend some more time in prison.  Do you understand?

67OFFENDER:  I understand.

68HIS HONOUR:  So, in addition to that you have got the supervision.  That means you are under their supervision for two years.  Because you are young, I think two years is not unreasonable.  You have got a bit of a history now and you need to behave yourself for a couple of years.

69Drug assessment and treatment, obviously that has been a big problem for you.  you offended while you were under the influence of Xanax as far as I can tell, so you need to comply with whatever it is Corrections decide you should be doing.  I do not want to see a report that says you missed multiple appointments and are having trouble getting it started, I want this to start as soon as possible.

70OFFENDER:  Yes, Your Honour.

71HIS HONOUR:  Mental health assessment and treatment, you are no doubt au fait with all of that and I have got a report and Corrections will deal with that.  Offending behaviour programs as well.  So that is a matter for Corrections what they decide you should do, but you will have to do that also.

72In addition, you are going to have judicial monitoring.  I do not know how long this will go for.  I will see you in three months, so that means you come back here or you can link in via the internet and I get a short progress report from Corrections that tells me how you are going, and we discuss that.

73So there is constant monitoring.  You have to come back here.  I may not keep doing that for a long time, but I will see what is said in the first report.  So, they are the conditions.  You have to consent to that.  22 August for judicial monitoring.  I will make that at 9.15am.  You will be able to join via an internet connection.  You will get notice of that.

74As I say, I get a report that tells me how you are going. You have built up a solid history in the space of the year or two years really, and if you keep offending you will end up with longer and longer prison sentences.  You cannot go into people's houses with knives and not expect to end up getting three, four years in prison.

75Your life will just become a complete waste if that is the way you go.  You have got all these people who are trying to help you, your parents, your family, all these people at Birribi, so you have got the support there and you do not really have any excuses, you just have to knuckle down and do it.

76OFFENDER:  Yes.

77HIS HONOUR:  And not collapse if things get a bit tough.  Even though the material suggested you were drinking a bit, Corrections took a different view so I have not put that on the order.  Were there any other orders, Mr Elishapour?

78MR ELISHAPOUR:  Your Honour, I was just looking at the engrossed orders from the last occasion.  I believe the forfeitures were already made in respect of the knife.

79HIS HONOUR:  Yes, I did that.

80MR ELISHAPOUR:  I do not believe there are any further orders.  Sorry, seven days on the summary offence?

81HIS HONOUR:  Yes, sorry, I should have announced that, seven days concurrent on the resist police, but that is part of the PSD that covers all that.  It is concurrent with the 277 days imposed on the aggregate sentence.  Thanks.  I do not think there are any other orders I need to make.  Good luck, Mr Armstrong.  I am hoping that I will see a positive report when we come back in a few months' time.  Thanks to counsel and I will adjourn.

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