Director of Public Prosecutions v Chandler (a pseudonym)

[2018] VCC 2041

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN CHANDLER (a pseudonym)
KANE GRAHAM-O'CONNOR

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 December 2018
CASE MAY BE CITED AS:	DPP v Chandler (a pseudonym) & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 2041

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 T. Saville
For Accused Chandler	Mr A. Maloney
For Accused Graham-O'Connor	Mr N. Jane

HER HONOUR: 

1Ben Chandler[1] and Kane Graham-O'Connor, you have pleaded guilty before me as follows.  You, Ben Chandler, to one charge of aggravated burglary and one charge of recklessly causing injury, and you Kane Graham-O'Connor to one charge of recklessly causing injury. The facts underlining your offending are as follows. 

[1] Ben Chandler is a pseudonym.

2At about 3am on 8 July 2017 you, Mr Graham-O'Connor, arrived home where you discovered that Mr Chandler’s sister Alyssa[2] was in a taxi out the front, she telling you that she had been raped by the complainant in this matter, Brodie Reed, at an address belonging to a person named Riley Wood.  A few minutes later you called both Mr Chandler, who after a text message from you eventually answered his phone, and his father.

[2] Alyssa is a pseudonym.

3At about 3.30am you, Mr Chandler arrived at Mr Graham-O'Connor's where you both repeated Alyssa's complaint, as did she.  Neither of you knew the Wood's address and therefore you, Mr Chandler, spoke to a friend Doug Misso in order to obtain it, and the two of you then went to pick up Mr Misso so he could direct you to the Wood address. 

4At about 4am you all arrived at the address where Mr Reid was asleep on a couch in the living room.  You, Mr Chandler, got out of the car, banging on the windows, but got no response and used your mobile phone torch to look in the windows.  Mr Misso went down the side of the house to bang on another bedroom window and you, Mr Graham-O'Connor, stood out the front of the address.

5You, Mr Chandler, saw Mr Reid asleep on the couch and went inside via the open front door.  You then stood over Mr Reid saying, "Get the fuck up, come outside" punching him to his face, grabbing him by the throat and dragging him from the house, punching him again as you were in the course of doing this.  Once outside, you, Mr Chandler, punched the complainant twice more, saying, "You're a fucking scum.  How dare you fuck and rape a girl".

6At this point in time Mr Reid thought that he was being assaulted by a group of up to four or five people and also thought as he was laying on the ground that he was getting hit and kicked by them.

7You, Mr Chandler, believed you heard Mr Reid say "stop" so you did, and
Mr Reid then stumbled off to the side of the house, believing that he lost consciousness.  I make the point here that it is conceded by the prosecution that whilst Mr Reid talked about losing consciousness, medical examination did not support that so that in the list of injuries which I will eventually come to, loss of consciousness is not included.

8The three of you, that is Mr Chandler, Mr Graham-O'Connor and Mr Misso, left the address and Mr Reid crawled to the bedroom of Mr Wood, saying that he thought, "I think it was Ben and there were five of them".  Mr Wood's mother Susie described Mr Reid to police as being in shock, pale, shaking and clammy, with a bloody face.  A friend then took Mr Reid home and he then reported the matter to the Pakenham Police.

9Mr Reid then attended the Casey Hospital where the following injuries were noted: bruising and swelling to the face, a laceration to the lips, bruises over his left eye, bruising at the base of his neck and superficial scrapes on the right shoulder. 

10On 12 July 2017 you, Mr Chandler, went to the Pakenham Police Station where a record of interview was conducted and the next day police attended your home, Mr Graham-O'Connor, and you were taken to the Emerald Police Station for a record of interview.  Both of you made admissions to the offending.  This matter was settled, it is conceded by the prosecution, at the earliest stage, that is committal mention, a charge of aggravated burglary having been laid against you, Mr Graham-O'Connor, which was then withdrawn.  No victim impact statement has been submitted by Mr Reid.

11The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  I now turn to the personal circumstances of each of you.  I may say that in my view they are unremarkable in the history because neither of you have prior or subsequent convictions.  This is your first appearance in a court of law and indeed it would seem the first time that you have come to the notice of police.

12You, Mr Chandler, are 24 years of age.  You were 23 at the time of this offending and as your counsel rightly pointed out, for the purposes of sentencing you fall to be sentenced as a youthful offender, where rehabilitation takes a larger than normal role in the principles to be applied in cases of this kind.  This is important because ordinarily aggravated burglary is seen to be, as you can see from the maximum penalty, a serious offence.

13Aggravated burglary, however, can encompass a wide range of circumstances and I accept your counsel's submission that this aggravated burglary, without in any way detracting from the seriousness of the charge, falls at the lower end of the scale of seriousness in my view of scenarios of this kind of offending.

14In any event, you are the eldest of four children.  You have three younger sisters.  Your parents separated amicably when you were quite young and it would appear from the materials that I have received you have for a time, following your parents' separation, taken a sort of semi-parental role in relation to your sisters, you also being the eldest boy.

15You had some difficulties with learning at school and left school when you were 15, going into immediate employment as an apprentice plumber.  The firm you worked for went broke.  You then went and worked for your father for a while.  He runs a florist farm, if I can put it that way.  You then went off again and did some other work, but eventually returned to work for your father and have a responsible role in the running of that farm in a management kind of role where you have been employed for about two years and where it would seem you are going to be employed for the foreseeable future.

16You are in a relationship with a woman with whom you had been friends for a long period of time before you became romantically involved and she remains supportive of you, as do your parents, and I note that a wide array of family was present to support you.  I am satisfied you come from an otherwise extremely law-abiding family.  I received a host of references attesting to your very good work ethic, your general law-abiding nature, and in those references there is much mention of remorse as to your offending, as was the case in the south-east CASA report I received from Carolyn Worth, a manager, which was tendered on the plea.  You attended some counselling there because Alyssa, your sister, went on to lay a complaint with police and also to receive counselling with CASA.

17You were described as remorseful and upset but you impressed, according to Ms Worth, as a mature young man, "who has a strong sense of family and right and wrong.  He sees it as his role in the family to protect his sisters and in particular Alyssa, who has a history of mental illness following the death of three close friends".  I note here that your sister Alyssa had a difficult time when three friends who were coming to pick her up to take her out died in a car accident and that understandably involved a great deal of upset and depression to her and one unsuccessful suicide attempt.

18Without in any way condoning the vigilante-type of behaviour that you engaged in, Mr Chandler, I accept that there were very specific circumstances surrounding this offending which caused you to behave in a way which I accept is very much out of character with the law-abiding, productive and responsible young man that you otherwise are.

19Insofar as you are concerned, Mr Graham-O'Connor, you are 26 years of age.  You were 24 at the time of offending.  You, too, are the eldest in your family.  You and Mr Chandler have been friends since primary school.  You are extremely close friends and as a result you are extremely close to and well acquainted with Mr Chandler's family, including his sister Alyssa, and I accept also that the circumstances surrounding this offending were ones which were quite peculiar and unique to you, impacted on the closeness that you felt to Mr Chandler's sister and that the offending should be seen in that light.

20You, too, have a very good work history.  The situation is that you completed a carpentry apprenticeship.  You now work as a caulker, which is an occupation largely engaged in the ceiling and waterproofing of various items, and recently you and a friend have set up your own business which currently keeps you working about three days a week but it is your hope that your business will expand and you and your partner are hopeful of gaining government contracts.

21I note that you, Mr Chandler, currently work six days a week in your occupation on the farm.  You gave your occupation as farmer and that involves you starting work at 7.30 in the morning and finishing around 5 o'clock each day, working most Saturdays and every second Sunday.

22Again, Mr Graham-O'Connor, you were well supported by family.  I received a number of references also attesting to your hardworking nature and the otherwise responsible and law-abiding way in which you lead your life.  Of course, you are not facing a charge of aggravated burglary, you are charged only with recklessly causing injury.

23The prosecution have submitted that I should deal with each of you by way of a Community Corrections Order which carries a conviction.  One can understand why the prosecution has made this submission, particularly in your case, Mr Chandler.  Aggravated burglary, which usually involves the violent unlawful entry into another person's home, is considered to be a serious offence.  I accept that there was no forced entry but nevertheless it was entry into another person's home as a trespasser with intent, knowing another person was present there, you having shone your phone torch into the window, and then assaulting him.

24I am giving you an opportunity today but I make it very clear that should you engage in this behaviour again, firstly the court will know about this prior appearance before the County Court, but also that you were given an opportunity in relation to what is regarded as a serious offence.  There is a particular brand of lawlessness you might appreciate that is attached to the unauthorised violent entry into other people's homes and courts generally are expected to respond to this sort of criminal activity in a severe way.

25However, in your case, because of your very good prior history, your evident cooperation with police, my acceptance that a plea which was offered at the earliest opportunity is also indicative of remorse you feel towards your victim and to the offending that you engaged in, and because of your relative youth, in my view a Community Corrections Order which does not carry a conviction is appropriate in your case.

26I should add that it is quite clear that neither you nor Mr Graham-O'Connor have any problems with mental health difficulties, drug or alcohol abuse, which can I tell you is quite unusual in this court.  There is therefore no need in my view for me to impose a Community Corrections Order with any other condition other than one of carrying out unpaid community work which I accept will be quite onerous for you given that you work six out of seven days, now it is going to be seven out of seven for a while.

27I should add you have been found assessed as suitable for placement on this order and you have been assessed, unsurprisingly, as a low risk of offending in the future.  I regard the rehabilitative prospects of each of you as excellent and that is important because if a person demonstrates very good prospects of rehabilitation then the court does not have to worry about the safety of the community.

28Essentially, the prosecution urged upon me that general deterrence is a principal factor to which I should have regard.  General deterrence means the court imposes a sentence which is meant to send out a message to other people in the community that if they behave in the same way that you two have, they are likely to be met with a stern response by the court.

29I am only responding in the way that I am because of the particular circumstances surrounding this offending and because of the excellent records of each of you as well as the evident remorse you have shown and the cooperation that you also demonstrated with police.  I do not regard specific deterrence, that is a punishment designed to deter you from behaving this way again, as being of a special relevance insofar as this case is concerned.

30Insofar as you are concerned, Mr Graham-O'Connor, it is my view that a Community Corrections Order is not a necessary response in this case.  First, that is because you are charged only in relation to recklessly causing injury and that is on a complicity basis, that is on the basis that you stood there while
Mr Chandler carried out the offending that he did.  You are said to be complicit in that offending although you did not actively engage in it.

31I am also satisfied that this offending was impetuous and impulsive, not particularly well planned.  There is no evidence that this was anything more than a desire to have a confrontation with Mr Reid, although,
Mr Chandler, you seem to have made your mind up pretty early in the piece that you were very, very unhappy with Mr Reid and were going to do something, as indicated by the fact that almost as soon as you saw him, if I can put it in parlance, you went for him.

32However, it does not seem to have lasted for long and when the victim said "stop" you did.  Again, I understand that in your mind there was provocation.  I  do not regard it as an excuse.  There are other ways you could have gone about this and certainly I hope it serves as a lesson for you in the future.  You were essentially taking the law into your own hands and look where you are now, in a place that I expect neither you nor your family ever thought you would be.

33Can you stand up please, Mr Chandler, because before I can place you on a Community Corrections Order I must gain your consent and therefore I need to explain the conditions that will attach to the order.  They are that you must report to the Corrections office within two working days of the making of this order, that is by Friday of this week.

34The order will last for a year.  While you are on this order you must not commit any other offence punishable by imprisonment.  That does not mean that you have to be imprisoned in the next 12 months.  It means if you do something for which theoretically you could be gaoled, like knocking off a box of matches from Woolworths, that will breach the order, you will be brought back in front of me and I will resentence you on this. Do you understand?

35OFFENDER CHANDLER: Yes, Your Honour.

36HER HONOUR:  While you are on the order you cannot leave Victoria without the permission of the community corrections office.  You must report any change of address or employment to the community corrections office, you must report to and receive visits from the community corrections office, you must obey all lawful directions of the community corrections officer and you may not attend upon the community corrections office under the influence of drugs or alcohol.

37As a special condition, I am going to order that you undertake 120 hours of unpaid community work.  Are you prepared to enter this order?

38OFFENDER CHANDLER:  Yes, Your Honour.

39HER HONOUR:  Thank you.  You may have a seat.  Mr Graham-O'Connor, as I have said, I do not regard a Community Corrections Order as the appropriate response to your offending.  Your counsel submitted and I should add that both counsel conducted excellent pleas in this matter.  But your counsel submitted that I should deal with you in a - with an undertaking to be of good behaviour with a donation to some sort of charity.  I understand the situation is that you clear something in the region of $600 to $700 a week.  You reside at home with your father.  It seems to me, in the circumstances, that a fine without conviction is appropriate.

40I also note that the desire to obtain government contracts in order to grow your business is one which could be hampered by a conviction at this stage.  And in all the circumstances and the wealth of mitigatory material that exists in this matter, it seems to me appropriate to give you a chance to prosper with that business as best you can.  Again, if you return to court on any further offending, you will have been seen to have been given a chance by the courts.  And it will be noted that you have previously appeared in the County Court.

41So, it is very much not in your interests to ever engage in this sort of offending again.  All right?  In the circumstances, therefore, I am going to fine you $800 and I am going to give you three months to pay.  The Community Corrections Order for you, Mr Chandler, will also be without conviction.  Again, in recognition of the greater than normal role that rehabilitation has to play in the sentencing exercise before this court and the special mitigatory circumstances that exist in this case.  All right, thank you.  We will just prepare the paperwork.

42MR MALONEY:  As the court pleases, Your Honour.

43HER HONOUR:  I see that the - you are seeking a s.464ZF.

44MS SAVILLE:  (Indistinct words).

45HER HONOUR:  I'm not inclined to grant it.  They've got no priors.  There's been nothing since.  I don't think it warrants the taking of a sample at this stage.  Thank you.

46MS SAVILLE:  As Your Honour please.  As the court pleases.

47MR MALONEY:  As the court pleases, Your Honour.

48HER HONOUR:  Yes, thank you, we'll just get you to sign that, thanks,
Mr Chandler.  No.  Do I need to do a s.6AAA for Mr - I don't for Mr Chandler but I don't for Mr Graham-O'Connor?

49MS SAVILLE:  No.  Not where a CCO is involved, Your Honour.  It's only mandatory where there's imprisonment.

50HER HONOUR:  Yet another reason not to (indistinct) - no, not at all.  Thank you very much.  Is there anything else that I need to attend to?

51MR MALONEY:  Nothing further, Your Honour.

52HER HONOUR:  I thank counsel very much for your assistance.  Good luck gentleman.  I'm sure we'll never see - I'm sure you want to see me again about as much as I want to see you, which is not at all.  Have a very happy Christmas and we will adjourn to 9.30 tomorrow morning.  Thank you very much.  Thank you.

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