Director of Public Prosecutions v Campbell

[2015] VCC 1999

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-01779

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLIN CAMPBELL

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2015
DATE OF SENTENCE:	7 September 2015
CASE MAY BE CITED AS:	DPP v Campbell
MEDIUM NEUTRAL CITATION:	[2015] VCC 1999

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Offender Warren	Mr A. Brand
For the Offender Campbell	Mr L. Ritcher

HIS HONOUR: 

1Colin Campbell, you have pleaded guilty to one charge of aggravated burglary.  This offence has a maximum penalty of 25 years' imprisonment.

CIRCUMSTANCES OF THE OFFENCE

2On 8 March 2014 you were involved in communications with other witnesses in relation to collection of a debt of $340 from Damien Baker.  It was unclear if the debt was between Warren and Baker or yourself and Baker. 

3In the early hours of 9 March 2014, at 2.10 am, you attended at the home of Sarah Smith, who is Damien Baker's partner.  Ms Smith lived at 13 Alana Court, Marong, with her four children aged between 14 and six years old.  At the time you attended with Warren the children were all asleep in the house. 

4

Upon arrival Ms Smith was out the front of the house. She did not know you but certainly recognised the co-accused, Warren.  Warren got out of the car. Ms Warren's car was captured on CCTV from a neighbour's house.  Ms Warren was yelling, "Where is the dog, where is the cunt", referring to Mr Baker.  You followed Warren and Smith into the house.  Warren was yelling and threatening Ms Smith and demanding to contact Baker.  You stood silently in the house.  You had a telephone communication with Baker and demanded he return to the house as you were there with Warren.  Ms Smith has used your phone to contact

Mr Baker.

5The Crown accept that you had expressed the words “you would not let her, [meaning Warren] hurt anyone in the house”.  You left the house at 2.30 am, after you received a warning from another person, Brown. 

6Your role in this offence was that of an inactive back-up person.  You were unknown to the victim.  You were in her house at 2:00 am in the morning.  It is accepted by the prosecution that you were not going to allow any harm, that is physical harm, come to the occupants of the house at the hands of your co-accused, Warren.

7The aggravating features of your part in this offence are;

(a) you were a stranger to the immediate victim, Smith;

(b) it was 2:00 am, in the early hours of the morning;

(c) it was a private home where four young people were sleeping.

8The mitigating features of your part in this offence are;

(a) you were not physically or verbally active in the aggressive or confrontational nature of the offence;

(b) you acted as a moderating influence or hand-brake on your co-offender being more dangerous than she in fact became, that is, you were to stop Warren from causing any physical harm to any of the occupants.

IMPACT ON VICTIMS

9There was no Victim Impact Statement in this case.  This was clearly a frightening experience for the five occupants in the house. A young child was that frightened she hid under her bed. 

YOUR PERSONAL CIRCUMSTANCES

10You are now 34 years old.  At the time of the offending you were 32 years old.  In the past, that is 2003, you had been sentenced to two months' imprisonment for assault.  That sentence was served as an Intensive Corrections Order.  You have other old and not directly relevant court appearances.  More recently you were on remand for 101 days in custody for offending which occurred after this offence.  On those offences you were sentenced to a 12 months CCO on 25 March 2015 in the Magistrates' Court.  You were not sentenced to imprisonment on that day.  In effect you have served 101 days in prison on remand, which has not been accounted for as pre-sentence detention.

11

On the Community Corrections Order you have been a changed man.  An email dated 10 August 2015, which is Exhibit C2, describes your attitude as very positive.  You have been assessed as a low level of risk for re-offending and hence did not “qualify” for offender behaviour programs under that CCO.  Whist you are completing the 200 hours of unpaid community work under that CCO, you continue to be full-time employed as a demolition worker by Ken Hopley.  I refer to Exhibit C3. 

Mr Hopley allows you Mondays off so that you can complete your community work.

12You are now drug free and have remained so since March 2015, after your release from prison.  In that sense your time in custody has acted as a break from drugs and has given you a chance to get off them and stay off them.  You have returned to full-time employment and are drug free. 

13You were educated to Year 10 and have completed two apprenticeships, one as a plasterer, the other as a bricklayer.  You are a qualified and experienced asbestos remover.  Despite the constructive nature of your trades your work is in demolition and you have done so for ten to 12 years.

14You have two children from a previous marriage.  Your daughter lives with your ex-wife in Queensland.  Your son, who is ten years old, suffers from ADHD.  Your wife was unable to care for your son so he returned to your care approximately five years ago.  You currently live with your mother and your son.  I note that your son would be in the same age bracket as the children in the house where you offended.  The impact of your behaviour on them must be obvious to you.  In any event, you are the sole parent who has assistance from your own mother.

15In the past two years you have commenced a relationship with Andrea Brown.  You were in prison when your daughter has been born from that relationship.  On the day of your plea Ms Brown was in court to support you.

16In summary, you are an offender who has parental responsibilities for three children, two of whom live with or near you.  The plan with Ms Brown is to get a house big enough for the two children and yourselves to live together here in Bendigo.  Your work will support all of them.

17The criminal offending in this case and the subsequent offences is a direct result of your use and addiction to methylamphetamine, commonly known as ice.  You commenced using the drug after your father's death approximately two years ago.  You had visited your father one evening and the next day he died of a heart attack.  You were the last person to see him alive and the first person to find him dead.

18It was submitted on your behalf that you sought or found refuge in drugs as a way of dealing with your grief.  If you still grieve for your father, do something about it and get some counselling or it will come back to haunt you again, possibly tipping you back into addiction.

19Finally, you have the support of your sisters and your mother.  One of your sisters supported you on the day of your plea.  Your mother had to attend to work on that day.

SENTENCING CONSIDERATIONS

20The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both general and specific, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of your victims.  I am required to balance the interests of the community by denouncing your criminal conduct with the interests of the community and seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society. 

21As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That inquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics at the time of the offence.  I have considered these statistics and current practices, mindful that each case must be considered in light of its own particular circumstances, and many of the cases would be distinguishable from your particular involvement in this case, as indeed they are from one another.

22The charge of aggravated burglary is a serious offence.  I have previously referred to the aggravating and mitigating factors in your role in this offence.  I accept that your role in the offence is at the lower end of the range for the offence of aggravated burglary.

23I have considered the issue of parity of sentence between you and your co-offender, Ms Warren.  I accept the prosecutor's submission that there is a disparity in the respective roles and the participation in the offence between yourself and Ms Warren.  This difference will be reflected in your sentence.

24You have pleaded guilty to the charge.  Your plea of guilty was offered after a contested committal had been completed but also after you were released from prison on remand.  You would have been aware at the time of your plea offer that further time in gaol was a reality for you. 

25Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  There was a certainty of the outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea of guilty vindicates public confidence in the legal process set up to protect the community.  You have by your plea relieved your victims from giving evidence against you. It facilitates some closure for them.  Your plea of guilty also indicates and demonstrates your remorse.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises you are willing to facilitate the course of justice in the community.

26The principles of general and specific deterrence and denunciation of your behaviour ordinarily call for your immediate imprisonment.  However, I find that in the particular circumstances of your role in this offence, combined with the real and positive prospects of your rehabilitation continuing in the community, will ensure greater protection for the community in the long term future.

27Upon your release from prison in March you have continued your rehabilitation in respect of drug addiction and returned to full-time work.  Facing up to your family responsibilities and undergoing some unpaid community work all point the court to imposing a penalty that encourages and supports you to continue with your rehabilitation. 

28Would you stand please.

29

On Charge 1, aggravated burglary, you are convicted and sentenced to serve a three year Community Corrections Order, commencing this day,

7 September 2015.  The conditions of that order are:  (1) that you be supervised; (2) that you undergo drug assessment and treatment; (3) that you perform unpaid community work of 300 hours.  You are to attend the Bendigo Corrections Office by 4 pm on 9 September 2015. 

30I order a forensic sample which was sought.

31I declare that you have served five days' imprisonment as pre-sentence detention.  Under s.6AAA which is but for your plea of guilty I would have sentenced you to 18 months' imprisonment.

32You may be seated.

33MR RICHTER:  Your Honour, a very small point.

34HIS HONOUR:  Yes.

35MR RICHTER:  Because of the weekend remand the PSD would now be five or six days.

36HIS HONOUR:  My apologies.

37MR RICHTER:  It's a tiny detail  ‑ ‑ ‑ 

38HIS HONOUR:  Every day counts.  So it's five days?

39COUNSEL:  It's three plus two, five.

40HIS HONOUR:  Sorry, my mistake.  Mr Campbell, I made a mistake, your pre-sentence detention is declared at five days.

41MR CORDY:  Can I hand up an appropriate form of order in relation to 464ZF, Your Honour.

42HIS HONOUR:  Thank you. 

43MR RICHTER:  As I indicated, Your Honour, that's not opposed.

44HIS HONOUR:  Yes, thanks.  I have made the forensic sample order in respect of you, Mr Campbell, which allows the police to take a sample from you.  Do you understand that?

45OFFENDER:  Yes.

46HIS HONOUR:  They can use reasonable force to take that sample if you don't comply. 

47OFFENDER:  (Indistinct)

48HIS HONOUR:  Thanks.  You have to sign a CCO before you leave.  You just might have to sit there for a while.