Director of Public Prosecutions v Cartwright

[2019] VCC 1034

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01194

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY CARTWRIGHT

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2019
DATE OF SENTENCE:	10 July 2019
CASE MAY BE CITED AS:	DPP v Cartwright
MEDIUM NEUTRAL CITATION:	[2019] VCC 1034

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Aggravated Burglary – Theft of Motor Vehicle – Theft – Age (25) – Relevant Criminal History – Drug Use – Early Plea of Guilty

Legislation Cited:                 Sentencing Act 1991 (Vic)

Sentence:  Imprisonment for a period of three years with a non-parole period of 20 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Goodenough (Plea) Ms K Thomson (Sentence)	Office of Public Prosecutions
For the Accused	Mr C Pearson	Papa Hughes Lawyers

HER HONOUR:

1       Harley Cartwright, you have pleaded guilty to one charge of aggravated burglary for which the maximum penalty is 25 years’ imprisonment and two charges of theft which each carry a maximum penalty of 10 years’ imprisonment. You have also consented to the uplifting of one summary charge of driving while disqualified, and have pleaded guilty to that charge, which carries a maximum penalty of 2 years’ imprisonment or 240 penalty units.

Procedural history

2       You were originally charged with aggravated home invasion on the basis that you entered the house in company, and had with you a knife. At a very early stage in the proceeding, on 20 February 2018, you offered to plead guilty to aggravated burglary, on the basis that while you planned the offending, which was aimed at stealing a Monaro from the garage at the premises, no weapons were to be involved, and your role was in fact limited to remaining outside the property, until such time as the keys to the white Commodore were produced. That offer was rejected by the prosecution.

3       At the time of committal, you offered to plead to a charge of home invasion, on the basis that you organised the incident but did not enter the house. This plea was rejected by the prosecution.

4       The matter was listed for trial in April 2019, with the principal charge being that of aggravated home invasion, but did not proceed as you were in lock-down on remand due to an outbreak of influenza. The matter was listed for trial on 1 July 2019, but resolved on 3 July 2019 after evidence was given by Arlene Campbell and Romy Campbell. A fresh plea indictment was filed and you pleaded guilty to the current charges before the jury was discharged.

Circumstances of offending

5       The details of your offending are set out in the agreed Summary of Prosecution Opening For Plea and I sentence you on the basis of the facts set out in that document. Those fact may be briefly summarised as follows.

6       At around 7am on 7 December 2017, Arlene Campbell was at home with her two adult children, Romy and Caleb. Another son, Angus, had left for work. Arlene received a phone call on her landline, answered it and said “hello”. There was no response and she hung up. The call had come from a mobile number which was your number. A short time later, Arlene answered a large knock at the front door. A man at the door was wearing a black and white mask. Arlene tried to close the door but the man held it open and produced a knife, which he held so that she could see it. The prosecution does not say you were aware that a knife was present or was being produced. Arlene stepped back and four men wearing disguises entered the home, pushing past her. No words were spoken between the men. One of the men went into the garage and took the cover off the Holden Monaro vehicle belonging to Angus Campbell, which was the target of the aggravated burglary. He tried to open the vehicle but it was locked. Another man entered the garage and tried to open the garage door.

7       It is not alleged that you entered the house, but rather that you organised the aggravated burglary and were present nearby and on the property when it occurred.

8       One of the men inside the house took Arlene’s iPad. She tried to pull it back from him but it fell to the ground outside, where he retrieved it and got into a white Suzuki parked nearby. You are not responsible for that theft.

9       However, also stolen from the house was the car key to Romy Campbell’s vehicle, and that is the subject of charge 3.

10      The men came out of the house. You obtained keys from one of them, and got into the white Commodore belonging to Caleb which was parked in the driveway. Arlene came out of her house and took photographs of you seated in the car. The other men got into the white Suzuki. You drove off in Caleb’s car, and the white Suzuki followed you. This is the subject of charge 2, theft of motor vehicle.

11      You have been friends with Angus since kindergarten, and had stayed at the home overnight on previous occasions. Angus also had a missed call on his mobile phone from you at around 7.00 am on the day of the offending.

12      Later that day, you drove the stolen car in Broadmeadows.

13      Police attended the premises shortly after the incident and you were arrested at 2 pm that day at 54 Keith Avenue Sunbury, where you had been staying. The stolen Commodore, minus its registration plates, was located at the rear of the property. Shortly thereafter, a search warrant was executed at those premises. The registration plates of the stolen Commodore were located at the rear of the property, hidden in the garage. The key to Romy Campbell’s car was recovered by police from the room where you were staying.

14      While the search warrant was being executed, your de facto partner arrived at the address in the white Suzuki used in the offending, and parked outside.

15      At the time of offending, you were disqualified from driving. You were also serving a 12-month Community Correction Order which was imposed by the Melbourne Magistrates’ Court on 23 August 2017 in respect of a number of drug, dishonesty and driving offences.

16      You have spent 580 days in custody, not including today, which are to be treated as pre-sentence detention.

Victim impact statement

17      Romy Campbell provided a Victim Impact Statement dated 3 July 2019 which was read out in court at her request. She states that she was very upset by the incident and experienced severe to moderate anxiety for about twelve months afterwards. Specifically, she suffered disrupted sleep and frightening dreams of the incident; anxiety and hypervigilance when opening doors; flashbacks and memory disturbances; scattered thinking and obsessive thoughts of danger; and sadness and a sense of betrayal that a friend could do what you did.

Prior convictions

18      As an adult, you have a number of prior convictions. Your interstate convictions in 2015 and 2017 concern driving offences. The 2017 offending resulted in 58 days’ imprisonment in Townsville from 28 April 2017. In Victoria, you were fined $700 with conviction on 14 October 2015 for burglary and theft. On 23 August 2017, you were sentenced to 4 months’ imprisonment and a Community Correction Order in respect of a series of thefts, drug and driving offences, and one charge of recklessly cause injury. That offending was committed while you were on bail.

Background to the offending

19      According to your counsel, at the time of the offending, you had been released from jail and were living in Sunbury with friends, who were also drug users. You had dropped out of contact with the Campbell family but knew that Angus Campbell owned the Monaro.

20      In the days leading up to the offending, you had been using ice heavily. In discussion with others, you decided that you would take the Monaro and go ‘joy riding’. There was no discussion about the use of a knife; you did not know that one was to be used; and are still not certain that a knife was used.

21      You went with others to the Campbell’s home, and made the telephone call to Angus from outside. You waited outside the house while others went in to obtain the keys to the Monaro. The others came out and told you that they did not have the keys to the Monaro. One of the group gave you the car keys to cars owned by Romy and Caleb. You jumped in the Commodore and drove away. The offending lasted only a short time.

Personal circumstances

22      You are 25 years old and were 23 years old at the time of offending. You are the youngest of four brothers. One of your older brothers was tragically killed in a car accident in 2002, when you were around 8 years old. His death caused enormous grief and upheaval within the family. Your parents separated and then divorced, with much acrimony, and while your father was granted custody of your two older brothers and lived in Sunbury, you lived with your mother in Jamieson in the family holiday home. You moved frequently between the two homes, and were very unsettled. You came to the attention of police in Jamieson, and left school at the age of 15. From that time, you were abusing drugs and alcohol and mixing with a peer group involved in similar activities. You did not have stable accommodation.

23      In 2012, when you were 18 years old, you started a plumbing apprenticeship in fire protection, but did not complete it. You do not suffer from any mental illness, but have lived an unstable life since your mid-teens due to your family circumstances and your subsequent drug abuse and chaotic lifestyle.

24      Your parents are now on reasonable terms. They remain very supportive of you, particularly since you have been drug free in custody. Your father, who attended court throughout the trial and plea hearing, remarried and subsequently divorced. His step-son, with whom you were close, suffered from mental health problems and committed suicide in 2017. His death affected you badly. Your father is a semi-retired plumber specialising in the installation of sprinkler systems. One of your brothers works in partnership with him. There is employment available to you in that industry, according to the reference supplied by Andy Wallace of the Plumbing Trades Employees Union.[1] Your father, who is strict and will not allow drugs in the home, has offered for you to live at home in Sunbury with him when you are released and will help you find employment.

[1]Exhibit A

25      Your mother, who remains very close to you, but was unable to attend the plea hearing, writes that you suffered greatly after your brother died, throughout the bitter divorce between your parents, and then after that divorce when you were living away from your father and brothers.[2] On reflection, she states that although she thought you were coping because you were young, your drug use showed that you were not. She states that since being drug free in custody, you are your old self: sensible, loving and caring. She states that you are deeply remorseful for your offending, and realise what an impact your drug addiction has had on your life. She states that you have a positive outlook and a network of support through family and close friends.

[2]Exhibit A

26      Whilst in custody, you have been housed in a mainstream working unit at the Metropolitan Remand Centre. You have behaved well and have been working in the metal fabrication area. You have sought out psychological counselling and, since August 2018, have attended 38 sessions of individual therapy addressing your drug abuse issues. According to your counsel, you have worked hard to address the issues around your drug addiction and have resolved, once released, to go back to work and to remain drug free. Your counsellor, psychologist Sarah-Jane Bellinger, writes that you attended all scheduled sessions, participated appropriately, and demonstrated “high motivation for change relating to [your] substance use and offending behaviour”.[3]

[3]See her letter dated 12 June 2019 comprising part of Exhibit A (Bundle of References)

27      It is clear from the references provided that, when you are drug free, you are a friendly, trusted and hardworking employee. A close family friend, Leesa Johnston, who employed you when you were 15 years old, writes that before you started taking drugs and offending, you were a valuable, trusted part-time employee, who showed love and respect to your family and friends, even through the tragic loss of your brother.[4] Andy Wallace writes that when you commenced your apprenticeship with him in 2012 you were enthusiastic, hardworking and reliable.

[4]Exhibit A

Submissions

28      Your counsel conceded the objective seriousness of the offending. In particular, he conceded that there was an element of pre-planning, that the incident was traumatic for Romy and Arlene Campbell, and that it was a serious breach of trust given the long relationship of friendship between your family and the Campbell family and your longstanding friendship with Angus Campbell. On the other hand, he submitted, that the planning of the incident did not include any mention of a knife being taken or produced, that your unknown co-offenders spent very little time in the house, and said nothing, that the stolen car was of little value and was recovered undamaged, that you remained outside in the car and no one was physically injured.

29      Your counsel relied on your plea of guilty, which was offered at a very early date. He submitted that in spite of the delay until resolution of this matter, your guilty plea should be treated as having been entered at the first available opportunity. That plea is said to demonstrate your acceptance of responsibility for your offending, your remorse, and your offer to spare the time and expense of a fully contested criminal trial. Your counsel submitted that at all times, you instructed him that you did not want to expose the Campbell family to the ordeal of giving evidence, neither at the contested committal hearing, nor at the subsequent trial. In addition, you apologised through him to the Campbell family. You know that they are good people, old family friends, and hope that one day you will be able to renew your relationship with them.

30      Your counsel submitted that most of your prior offending occurred in the context of your drug abuse and itinerant lifestyle which occurred in the context of family tragedy and disruption, and relates to primarily drug and driving offences.

31      Your counsel submitted that, provided you remain drug free, your prospects of rehabilitation should be regarded as good. In this regard, he relied on your relatively young age, your abstinence from drugs and solid work record whilst in custody, and particularly your initiative in seeking out and then attending 38 individual sessions of one-on-one counselling to deal with your drug abuse issues.

32      Finally, he noted that you have been in custody for most of 2017 (on other matters) and since December 2017 on the current matters. Thus far, you have spent a total of about 19 months on remand. He conceded that a term of imprisonment was the appropriate disposition but submitted that in order to enhance your prospects of rehabilitation, the Court should consider imposing a shorter than usual non-parole period.

33      The prosecution conceded that your plea of guilty should be taken to have been made at the earliest opportunity. The prosecution submitted that this was quite a serious example of aggravated burglary: it was committed in company, in the early hours of the morning, using disguises and terrifying the victims, who were longstanding family friends. In addition, the stolen car’s registration plates were removed and hidden. You have a limited number of relevant prior convictions. It was submitted that the principal sentencing considerations are those of denunciation, just punishment, general and specific deterrence and protection of the community. Accordingly, it was submitted, the appropriate disposition is that of the imposition of a term of imprisonment.

Analysis and conclusions

34      The offence of aggravated burglary is a very serious offence, as is demonstrated by the maximum penalty of 25 years’ imprisonment. There is no doubt that your conduct warrants the imposition of a term of imprisonment. The aggravating feature of your offending is that it occurred whilst you were serving a Community Correction Order. In terms of objective gravity, the features which elevate its seriousness include that it was planned, occurred in company in the early morning, after ensuring that people would be home, that it involved the use of disguises, and that the victims, particularly Romy Campbell, were very frightened. On the other hand, those who entered the house said nothing while in the house, made no verbal threats, and, apart from the initial scuffle on entry and the scuffle over the iPad upon exiting the property, did little apart from trying to open the garage door, and trying to unlock the Monaro with the wrong keys. You were unaware that a knife was produced by one of those who entered the house. The victims were not physically injured. The value of the property stolen was very modest, and the stolen car was recovered undamaged. During the incident, you did not enter the house but remained outside in the car.

35      You bear high moral culpability for the offending because you planned it, knew the victims well, and, apart from being drug affected in the days before and during the incident, were not suffering from any mental illness at the time. In addition, you have limited prior relevant convictions.

36      Denunciation, just punishment, general and specific deterrence, and protection of the community are important sentencing considerations in your case.

37      However, I accept the matters put in mitigation on your behalf. In particular, your very early plea of guilty demonstrates acceptance of responsibility and remorse, and an offer to spare the community and the victims the time and expense of a fully contested criminal trial. I note that you have expressed remorse to others, and to your victims through your counsel.

38      I take into account that you were 23 years old at the time of offending; had a troubled chaotic adolescence in the context of a family tragedy and the subsequent divorce of your parents;  that you were using drugs heavily from the age of 15 and living an itinerant life. I note that during your extensive period on remand, you have undertaken extensive individual psychological counselling to help you address your drug addiction issues, have been working productively, and have reconnected with family and friends, who are very supportive of you. In addition, you have the offer of stable accommodation with your father, and the prospect of finding employment in the occupation you originally commenced as an apprentice. You are now 25 years old but are abstinent from drugs, and positive about remaining drug free and getting back to work.

39      You are a relatively young man. I consider that, given your rehabilitative efforts thus far in prison, as well as the prospect of stable accommodation, employment and your reconnection with family and friends, your prospects of rehabilitation are quite good, provided you remain drug free. For this reason, I consider that protection of the community plays less of a role in the sentencing exercise than it might in the case of other offenders. There is a public interest  in relatively young offenders being reintegrated into the community. In the circumstances of this case, I consider it appropriate to impose a slightly shorter non-parole period than would otherwise be the case.

40      All of your offending on that day is connected to the aggravated burglary. The aggravated burglary itself was a very short-lived incident, while the driving of the stolen Commodore occurred within hours of that offence. For this reason,  I propose to impose an aggregate sentence; that is, one sentence, taken together, for the four charges.

Sentence

41      Would you please stand. On charges 1,2, 3 on the indictment and summary charge 4, taken together, you are sentenced to an aggregate term of imprisonment of 3 years with a non-parole period of 20 months.

42      I declare you have served 580 days’ pre-sentence detention, not including today, and I direct that these be entered into the court records and deducted administratively. 

43 I indicate pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 3 years.

44      The Prosecution has also sought a Disposal Order in relation to the disposal of items connected to the offending. You have consented to that order through your counsel and I will make that order in chambers.

45      HER HONOUR:  Are there any other matters:

46      MR PEARSON:  No Your Honour.

47      MS THOMSON:  No Your Honour.

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