Director of Public Prosecutions v Calvert

[2016] VCC 866

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00031

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE CALVERT

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2016
DATE OF SENTENCE:	22 June 2016
CASE MAY BE CITED AS:	DPP v Calvert
MEDIUM NEUTRAL CITATION:	[2016] VCC 866

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Pace	OPP
For the Accused	Ms C. Lynch	Mark K Rawson Barrister & Solicitor

HIS HONOUR: 

1Luke Calvert, you pleaded guilty to the following charges on Indictment F13465961. 

2Charges 1 and 6 are charges of aggravated burglary.  These charges have a maximum sentence of 25 years' imprisonment each. 

3Charge 2, common law assault of Mitchell Williamson.  This charge has
a maximum penalty of five years' imprisonment. 

4Charge 3, common law assault of Brad Twentyman.  This charge has a maximum penalty of five years' imprisonment. 

5Charge 4, criminal damage of a motorcar belonging to Brad Twentyman.  This charge has a maximum penalty of ten years' imprisonment. 

6Charge 5, criminal damage of a motor vehicle belonging to Mitchell Williamson.  This charge has a maximum penalty of ten years' imprisonment. 

7Charge 7, intentionally cause injury to Samuel Lawther.  This charge has
a maximum penalty of ten years' imprisonment.

8You have admitted three prior court appearances.  The prior criminal history includes charges of burglary, theft, unlawful assault and driving charges.  The penalties indicate that this offending was at the lower end of the range for those offences. 

CIRCUMSTANCES OF YOUR OFFENDING

9I turn to the circumstances of your offending, and I am going to, in very large part, refer to the summary of the prosecution opening. It fully sets out your offending as follows: 

10At the time of the offending, you were 21 years old.  Your co-accused is defending the charges against him in the Magistrates' Court jurisdiction.  This relates to Charges 1 to 5 on the indictment. You are charged alone in respect of Charges 6 and 7. 

11You and the victims are known to each other.  You and the victims engage in or are familiar with online gambling.  Around the time of the offending, you believed that one of the victims, or one of their associates, had stolen money from your online bank account to use for online gambling. 

12On 2 October 2015, you attended Mr Sherar's 21st birthday party in Ferntree Gully.  Both yourself and Sherar left the party and drove to the home of another associate, Jack Doyle.  He lived at 44 Dairy Lane in Ferntree Gully. 

Charge 1 aggravated burglary at 44 Dairy Lane, Ferntree Gully

13You and Mr Sherar arrived at Mr Doyle's home at about 9.30 pm.  Mr Doyle was home.  Also there was Mr Twentyman and Mr Williamson.  Their cars were parked out the front of the premises. 

14Whilst out the front of Mr Doyle's home, you called Mr Twentyman's mobile phone.  Mr Twentyman answered the call.  You asked Mr Twentyman if his car was out of the panel shop yet.  Mr Twentyman lied to you and said that he was at home and that he did not have his car back. You then said to Mr Twentyman that he was a liar and that you could see his car out the front of Doyle's house.  Mr Twentyman and Mr Doyle then walked outside. 

15You and Mr Sherar were standing out the front of the house on the footpath.  You threw a beer bottle at the fence, smashing the bottle.  Mr Doyle ran towards the side gate of the house and you have chased him. Mr Doyle has then jumped over the fence. 

Charge 2 common law assault of Mr Williamson

16Mr Twentyman went back into the house.  Before he had a chance to close the door, you have entered the house. You ran past Mr Twentyman at
Mr Williamson who was standing inside, near the front door.  You attempted to kick Mr Williamson.  He stumbled into the living room. 

17You have then thrown punches at Mr Williamson, which connected with his forehead.  Mr Williamson put his arms up to defend himself.  You have punched him on the forearms several times.  You have grabbed MR Williamson's shirt and attempted to push him towards the wall.  Mr Williamson has tripped over.  You have kicked him in the forearm.  At some point Mr Doyle has re-entered the house.  He grabbed hold of you and pushed you out the front of the house. 

Charge 3 common law assault of Mr Twentyman 

18Mr Doyle tried to get both you and Mr Sherar off his property.  He was yelling at you and asking you what you were doing.  Mr Sherar ran at Mr Twentyman, who by this time is also outside saying, "you want to be a smartarse?"  He punched and kicked Mr Twentyman.  Mr Twentyman fell to the ground and put his arms up to protect his head.  You have then joined in.  Both you and Mr Sherar continued to punch and kick Mr Twentyman, mostly to the back and head region.  At some point the assault ceased and Mr Twentyman made his way back into the house.

Charge 4 criminal damage

19You then went to Mr Twentyman's Ford utility.  You used a pair of bolt cutters to smash all the windows of the vehicle and some of the panels on the vehicle. 

Charge 5 criminal damage

20You have then gone to Mr Williamson's Mercedes Benz sedan.  You have used the same bolt cutters to smash the rear windscreen and the rear vision mirror of that car.  Both you and Sherar then got in your car and drove back to Sherar's house. 

Arrest and interview

21On 8 October 2015, that is some days down the track, you and your mother attended by appointment at the Knox Police Station.  You were interviewed by the police and made admissions. 

22In relation to the 44 Dairy Lane Ferntree Gully charges, that is Charges 1 to 5, you said as follows during the course of your interview:

·I got drunk, way too drunk and ended up flipping out. 

·I wanted my money back.  I was pissed off that they could do that to me…  I stopped hanging out with them and I guess they were pissed off…  I was always bringing stuff to the table…  I always used to bring Bud around… so they thought they'd get me back.

·I picked up a wooden stump.  It might have been in Robbie's garden, before I left I grabbed it.

·When I went into the house, I didn't have anything in my hands whatsoever.

·I went inside and started beating the shit out of Mitch Williamson.  I was pissed off and I had no idea who took the money and stuff and I didn't find out until the next day.

·When I get drunk and I want to do something, I'll do it.  I know the consequences, I don't try to blame anyone else for it, and it’s my own choice.

·I was there to beat him up.

·I started punching him (Mr Williamson), kicked him a few times… and then he was screaming, so I stopped and ran out the front door and started on Brad…  I went a bit crazy…  I just punched and kicked him.

·I didn't damage that Ute. I’ll admit that I smashed a window in the Mercedes, Mitch Williamson's car. 

·There were bolt cutters in my car, 'cause I keep bolt cutters in my car for when I go to work.  They were what was used to smash the car up.  I didn't cause the damage to the Ute.  I threw a beer bottle at the back window. The Ute was done first and then I grabbed the bolt cutters and went up to the window and smashed the rear window.

·I think it was stupid and dumb.  If someone did this,
I would be pretty pissed off as well.  I wouldn't be happy at all.

·I went back to Robbie's house, I dropped him off and that is when I went to Sam's house, I drove there.

23I now turn to what I will refer to as the "second" event.  This encompasses Charges 6 and 7.  Charge 6 is an aggravated burglary of 71 Turramurra Drive in Rowville.  Charge 7 is the intentionally cause injury to Mr Lawther.  After you dropped Robbie off at his home, at about 10.20 pm, you have driven alone to 71 Turramurra Drive in Rowville.  Mr Lawther lived at that address.  A friend of his, Jack Byron was staying at that address. 

24Earlier on in the night, at approximately 9.40 pm, you had sent a Snapchat photograph to Mr Byron's phone.  The photograph was of yourself in a car, holding an axe. 

25Mr Lawther and Mr Byron had had a few friends over in the garage, which was set up as a games room.  They had been drinking alcohol and playing music there.  Their friends went home at approximately 10:00 pm. 

26Mr Byron went into the main house to use the bathroom.  Mr Lawther fell asleep on the couch in the garage.  You have entered the garage.  You have approached Mr Lawther and punched him in the face. Mr Lawther jumped up off the couch.  You have yelled, "Where's my money?  Where's Jack?  Where's my $250?"  Mr Lawther said to you, "Get out.  I haven't done anything."  Mr Lawther has then tried to run out of the garage and get to the front door of the house.  You have stood in front of him. Mr Lawther has kicked out at you, trying to keep you away.  One of the kicks connected with your stomach, causing you to move backwards slightly. 

27You then went out the garage side door. Mr Lawther ran out the front door of the house and attempted to open it.  You have grabbed him by the hair and the back of the shirt.  You have then pulled him back and thrown him into the brick wall of the garage.  You have punched him to the head and body.  Mr Lawther put up his arms and tried to get you off him. 

28Mr Lawther got away from you and ran into the house and closed the front door.  Mr Lawther's mother and Mr Byron found him lying face down in a bedroom of the house.  Mr Byron rang 000.

29Mr Lawther was then conveyed by ambulance to Dandenong Hospital on
3 October 2015.  He underwent surgery for what was described as a "stab wound" in the summary, some 2.3 centimetres long and five centimetres deep, to his abdomen.  He was discharged from hospital on 5 October 2015. 
Mr Lawther did not see you holding any weapon or implement during the course of the fight with you.

30When you attended with your mother at the Knox Police Station on 8 October 2015, you were interviewed in respect of Charges 6 and 7.  In relation to the events at 71 Turramurra Drive in Rowville, you said as follows:

·I went in there to beat up Sam Lawther and Jack Byron… but I didn't see him, otherwise I probably would have beat him up as well…  as I said I was pissed off

·Sam was passed out on the couch…  I pushed him in the chest, tried to wake him up, jabbed him the face with my left hand, he woke up and I started punching the shit out of him, kneeing him, throwing him around the garage.

·I definitely did not stab him.  I had something in my hand, I can't remember what it was.  I picked it up from the shed, inside the door.  I was pushing him around, smacking him with whatever I was holding.  It might have been a jack handle.  I was hitting him pretty hard with it.  That is the only thing I can think of piercing through, because they have a pretty sharp end on them. 

·I threw the implement away, in the shed.  I didn't take anything with me. 

·I didn't really have any idea what I was doing because I was a bit drunk. 

·I went there to hurt him. 

·I went back to Robbie's house, went home after that.

31You have not served any pre-sentence detention up to the day of the plea.  You attended here on bail yesterday.  You pleaded guilty to these charges on
15 January 2016 at the committal hearing.  Your plea is at the earliest time. 

VICTIM IMPACT STATEMENTS

32Mr Williamson filed a victim impact statement, dated 2 April 2016.  He describes his fear and anxiety at the time of your attack on him.  He missed some days from work because he was sore from that assault.  He has attended a psychologist to assist him with his problems.  He is wary and anxious when meeting new people. 

33Sam Lawther filed a victim impact statement, dated 4 April 2016.  He has been diagnosed with post-traumatic stress disorder and receiving counselling through an organisation known as Headspace. Mr Lawther was a friend of yours.  He ended up in surgery at an accident emergency department in Dandenong Hospital and had abdominal surgery to repair a stab-like injury to his abdomen.  He has moved out of his home, lost his work and is scared and angry all the time. 

34Ms Dianne Lawther, mother of Sam Lawther, also made a victim impact statement, dated 31 March 2016.  She speaks of the chaos and fear she felt on the night after she found her son bleeding on the floor of the bedroom.  She spent the weekend in hospital by her son's side.  She said that Sam has since left the family home and described how there is no more family unity within that family. 

35Mr Twentyman made a victim impact statement, dated 13 April 2016.  He says he received cuts and bruises in the assault by you and your co-accused.  The damage to his car meant he could not attend his work.  He states his biggest problem is the fear he now suffers and is limited to where he thinks he could go and not be fearful or anxious. 

YOUR PERSONAL CIRCUMSTANCES

36You are now 22 years old.  At the time of the offences, you were 21.  Your parents were in court to support you and have been throughout your life.  Your father is a bus driver, your mother works as a book keeper.  You have an older brother who lives at home. He has drug addiction problems which have impacted on your family in general, and you in particular.  Your younger brother is an apprentice plumber.  Your younger sister is at home and works part-time at the local McDonalds. 

37You completed primary school at Mountain Gate Primary School.  At primary school you were made a house captain and school leader in Grades 5 and 6.  You went to St John's in Ferntree Gully for secondary education.  Year 7 and 8 went well for you.  You worked part-time cleaning the animal cages at your mother's place of work.  By Year 9 you decided you wanted to be a diesel mechanic.  You started Year 10 but finally got your parents to relent on continuing at school and you commenced a diesel mechanic apprenticeship at Advanced Truck Centre. 

38You completed your apprenticeship in 2014, after working and transferring your apprenticeship through Big Rig Diesel Repairs and C. Fultons.  This shows that you are a person who can stick to the task and achieve positive outcomes. 

39Since these offences you have obtained employment full-time at Over Dimensional Lift and Shift Proprietary Limited.  You are the lead mechanic there and your employer, Anthony May, speaks very highly of you as a trustworthy, decent and hard-working young man.  That is in Exhibit 4 in the plea.  Mrs May came to court for your plea to support you.  It is clear you have a bright future as a diesel mechanic. 

40In 2011 you met your current partner, Elly Owens.  She wrote a reference for you, which was Exhibit 9 on the plea.  You have been in a relationship with her for five years.  At the time of these offences, you were separated from
Ms Owens.  She was not going to put up with your cannabis use and your bad behaviour. 

41In October 2015, sometime shortly after these offences, she became aware she was pregnant and had advised you of that fact.  Subsequently your child, Coby, was born on 17 March 2016. Since late October 2015, you have lived with Ms Owens at her parents' home.  

42You have got yourself fully employed and now are, in my words, "growing up", with the responsibilities of fatherhood and the proper treatment and respect for your partner, Ms Owens.  She says you are truly sorry for your offending and feel bad about what happened on that night.

43In the time leading up to these offences, you were using an excessive amount of cannabis for a while, and then you converted over to alcohol.  You had broken up with Ms Owens.  Your older brother's addiction to “Ice” was spinning out of control.  Your brother was finally admitted to Odyssey House in about August 2015 for treatment.  You supported your brother in that course and as
a consequence of that, reduced your cannabis intake so you could visit him.

44Your parents separated around that time.  You moved to your grandparents' place in Narre Warren.  Whilst you were there, as I say, your alcohol intake increased during that time, basically as a substitute for your previous use of cannabis.  The drinking increased to a heavy level. 

45You thought your friends had taken money from you and that they were using it for online gambling.  On the day before the grand final 2015, you were drinking heavily at your co-accused's 21st birthday party.  In a state of disinhibited intoxication, the anger over your friends' “taking” your $250 exploded into these offences.  There is no basis for you thinking your friends took your money.  Even if they did, it does not provide you with an excuse to offend in the way in which you did on 2 October 2015.

46I have no doubt this is one day in your life you wish you could take back.  You cannot.  You know you now have to be punished for your offending on 2 October 2015.

47You have been assessed by Jeffrey Cummins, a forensic psychologist, who prepared a report, dated 30 May 2016.  He assesses you to be of normal to average intelligence.  You do not have any psychiatric, psychological or personality disorder problems.  Mr Cummins assessed you as mildly depressed and anxious about being incarcerated.  That is an understandable position. 

48You have completed an anger management course.  This is a sign you understand some of your problems and are prepared to deal with them.  You had references from your mother, Fiona Calvert, Karen Peele, your
“parents-in-law”, that is how I am referring to them, Robert and Lisa Fletcher. 
Mrs Fletcher was here in court to support you, and her daughter.  Chris Maclagan, a football coach and president of Silvan Footy Club also provided
a reference.  I have read each and every one of those references and reports.  All of these people speak well of you as a person. 

49These are the same people you need to show that you will continue to mature and rehabilitate to become the leader that you were as a young boy in Grade 5 and 6. You have responsibilities to these people, Ms Owens and Coby to achieve that rehabilitation. 

50I have had you assessed for a CCO and you are a suitable person for that order. 

Sentencing considerations 

51The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victims.  I am required to balance the interests of the community in denouncing your criminal conduct, with the interests of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society. 

52You have pleaded guilty at an early stage in these proceedings, as I have said.  It was indicated at the committal stage.  Your plea has a utilitarian value of allowing the orderly and effective administration of justice, there is a certainty of outcome, and the resolution of substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates public confidence in the legal process set up to protect the community.

53You have, by your plea, relieved all of your victims from giving evidence against you.  It facilitates some closure for them as victims of your offending.  Your plea is also a clear acknowledgement by you that you accept the responsibility of your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community.  I also accept your plea of guilty to these charges indicates and demonstrates remorse on your part.

54In your interview with psychologist, Mr Cummins, you acknowledged your victims did not deserve to be assaulted.  You indicated and understand the physical impact of your assault on the victims.  I accept that you have demonstrated remorse for your criminal activity.

55Consistent with your plea of guilty and display of remorse, you attended at the police station by appointment with your mother.  You there made full and very frank admissions of your offending to the police.  This is a further factor to take into account when assessing your remorse and your understanding of the impact of your offending on your victims. 

56You have written a letter of apology to your victims and to the court.  That was Exhibit 3.  I accept that you are remorseful for your offending.  I also accept that in the sober state of mind, you appreciate what you have done to your victims. 

57Whilst you are not technically a young offender under the Sentencing Act, you are a young man who has offended in an extensive manner on one day whilst heavily intoxicated with alcohol.  The fact of your intoxication is not an excuse or a factor in mitigation.  The best that can be said is that your usual manner of behaving was disinhibited by alcohol. 

58I take into account your relatively young age, at 22 at the time of sentence, and give considerations to your prospects of rehabilitation, in the light of the fact that:

(a) You are on full-time employment as a fully qualified diesel mechanic;
     (b) You have moved back to live with your partner of some now five years;
     (c) you are now the father of a very young boy; and
     (d) You enjoy the support of your family and current employer. 

59The community is best served and protected into the future by your rehabilitation, and that can be achieved by a combination of imprisonment and a CCO.  The offending is in two separate events.  The first event includes two charge of criminal damage; two charges of common law assault; and one charge of aggravated burglary.  The aggravated burglary occurs in circumstances where you are the aggressor, and in the company with
a co-accused. You follow one of your victims into his home.  The fighting is in
a continuous event between you and a victim.  The offending is against people known to you, and you to them. 

60The motivation for your anger and attack on your victims is your wrong conclusion that one or other of them had stolen $250 from you to facilitate online gambling. 

61Your offending of aggravated burglary on this first event is really a continuation of your assaulting behaviour, rather than the usual course of such offending of committing the burglary first and the violence follows that offending. 

62I am conscious of the direction given to the sentencing courts by the Court of Appeal in Hogarth's case on aggravated burglary charges.  I assess the offending on the first occasion is outside the usual confrontational aggravated burglary.  The assaults of Mr Williamson and Mr Twentyman, whilst unprovoked and violent, are not at the upper end of that offending either.  The physical injuries to both of them are grazes and bruises. 

63Whilst the two charges of criminal damage to the two cars owned by Mr Williamson and Mr Twentyman is wanton vandalism, the necessity for a period of imprisonment as a sentence is not made out in your case. 

64The second event, encompassing Charges 6 and 7, are more serious.  You have entered the building, that is the garage, and woken and assaulted
Mr Lawther.  A fight commenced between you and Lawther.  You pursued him and continued to assault him after he had made an escape from the garage towards his home. 

65In the course of your assault on Mr Lawther, Mr Lawther received a stab wound to his abdomen.  It is not clear on the prosecution case exactly how the stab wound occurred.  The net result of the assault by you was the Mr Lawther required the attendance of ambulance officers, surgery to his abdomen and two days in hospital. 

66The second event, in its totality, calls for a term of imprisonment to account for the sentencing considerations of general and specific deterrence, just punishment and denunciation of your outrageous behaviour.  The length of the term of imprisonment is to reflect the seriousness of your offending, whilst at the same time, not be too long that it will fracture your path of rehabilitation from the time of the offence to the time of your plea yesterday. 

67You have prior criminal matters, involving three separate court appearances.  Relevantly, the history included charges of theft, burglary and unlawful assault.  The court sentences indicate your prior criminal history as at the lower end of the spectrum, as I have said before.  You do not have an extensive criminal history and this will be your first time in custody. 

68Your counsel submitted that the total of your offending could be adequately punished by a sentence of a CCO with work penalties and rehabilitation.  The prosecutor submitted that the offending required an immediate term of imprisonment and a CCO could deal with the rehabilitation aspects. 

69Would you please stand.

70On Charges 1 to 5, you are convicted and placed on a community corrections order for a period of three years.

71The conditions of that community corrections order are:

·    That you perform 100 hours of unpaid work;

·    That you be supervised;

·    That you attend for drugs and alcohol treatment and rehabilitation;

·    That you also attend offender reduction programs, in your case, anger management. 

72That CCO commences on the expiry of your prison sentence. 

73In respect of Charge 6, which is the aggravated burglary charge, you are convicted and sentenced to nine months' imprisonment. 

74In respect of Charge 7, intentionally cause injury, you are convicted and sentenced to six months' imprisonment.

75Three months of the sentence in Charge 7 is to be served cumulatively on the sentence in Charge 6.  That is a total effective sentence of one year imprisonment. 

76But for your plea of guilty, I would have sentenced you to a total sentence of three years', with a non-parole period of two years' imprisonment. 

77I declare that you have served one day of pre-sentence detention, and that is to be deducted administratively from your sentence.

78I have signed the s.464ZF forensic sample order, which I will just explain to you, Mr Calvert.  The prison authorities will take a sample from your mouth to obtain a DNA sample.  They are empowered to use reasonable force to obtain that.  Do you understand that?  The reasons for me making that order is that the seriousness of the circumstances of the offending, that application was not opposed and the granting of the order is in the public interest. 

79I have signed those section 464ZF orders. 

80MS LYNCH:  If I could just approach my client?

81HIS HONOUR:  Yes, certainly, sorry, thank you.

82I will just have you handed a copy of the community corrections order, so that you serve that when you are released. 

83Could you remove the prisoner please? 

84Thank you very much for your assistance Ms Lynch. 

85MS LYNCH:  Thank you, Your Honour.

86HIS HONOUR:  Thank you. 

87MS PACE:  As Your Honour pleases.

88HIS HONOUR:  Adjourn the court please.

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