Director of Public Prosecutions v Cluney

[2020] VCC 824

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02418
CR-19-02419

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD CLUNEY
WILLIAM JANES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2020
DATE OF SENTENCE:	10 June 2020
CASE MAY BE CITED AS:	DPP v Cluney & Anor
MEDIUM NEUTRAL CITATION:	[2020] VCC 824

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For Accused Cluney	Mr M. Turner	HBH Legal
For Accused Janes	Mr N. Goodfellow	Farrelly Legal

HIS HONOUR: 

1Ronald Cluney and William Janes, around 19 December 2018, you learnt from a friend and co-accused, Peter Rotumah, that he was having an argument with the victim.  The argument, it seems, was about Rotumah's ex-girlfriend.  Separately you, Ronald Cluney, were angry at the victim for what you believed he had said about your sister.

2Between 1 am and 2 am on 20 December 2018, you men, along with Rotumah, went to where the victim was living.  When he opened the door, you all entered and commenced punching the victim to the head.  This continued down the hallway.  The victim was told not to speak of the attack and you three men left.  The victim sustained bruising and swelling to his face. 
You men have pleaded guilty to aggravated burglary and recklessly causing injury.

3When you were arrested, Mr Cluney, on 3 January 2019, you had a tiny amount of cannabis in your pocket and you had been charged with possession of cannabis as well.  You were remanded on 3 January 2019 and have remained in custody to this point.

4You, Mr Janes, were arrested on 24 December 2018.  You too have done 396 days on remand.

5All aggravated burglaries are serious.  It is a crime with a maximum term of 25 years' imprisonment.  The Court of Appeal has more than once reminded sentencing judges of the need to ensure this maximum term operates as a guide post and is not ignored.

6The victim was entitled to feel safe in his house.  It was in the middle of the night.  Though I do not that you men did not break the door down nor carry weapons, but nonetheless it was a frightening, aggressive event or the behaviour of you men was frightening and aggressive, that is three of you in company attacking a man who had no warning of what was about to unfold in his own house.

7In assessing the gravity of this particular aggravated burglary and recklessly causing injury, it is not the worst.  It is in the lower half of seriousness. 
I accept you men were not the instigators but went along to assist and add muscle and menace to Rotumah's plan.

8Taking each of your personal circumstances separately, beginning with you, Mr Cluney, you are now 31.  You have significant support from your mother.  She and your father separated when you were about five and your father played no role in your life.  Rather, your mother's new partner was an important father figure for you.  You were raised in Portland.  You left school at Year 10 and commenced working on various fishing boats.  The work was seasonal.

9Drug use and unstable accommodation have plagued you for your whole adult life.  You commenced using drugs as a teenager, becoming addicting to ice by age 18.  You commenced offending and were before the Magistrates' Court from the age of 19.  You have had periods when you have been able to stay out of trouble and that is a positive indicator.  However, there have been a number of terms of imprisonment including for aggravated burglary in 2015.

10You have other prior convictions for violence as well as burglary, weapons, drug and dishonesty offences.  You were not long out of gaol when you committed these offences.

11You were at the beginning though of a relationship just before you were taken into custody and that relationship has continued.  You are determined to remain free of drugs and settle with your new friend on you release.  You said as much in a letter to the court.  The test of your commitment and capacity will be when you are back in the community.

12Your counsel submitted that I should impose a combined sentence of the time that you had served thus far in prison and a community corrections order. 
As was discussed during the plea, I considered that such a sentence would not properly take into account the seriousness of the crimes, the need for deterrence to you and to others, and the need for denunciation.

13Your rehabilitation is important but given how you have failed on community corrections orders in the past, it seemed to me that a sentence with a potential for parole was appropriate.

14Turning to you, Mr Janes.  You are now 32.  You were born in Sydney but moved a great deal in your childhood before settling in Portland.  Your parents separated when you were very young.  Your mother's new partner was violent and you were forced to leave home when you were only 14.  You lived then with your sister and have continued to have a good relationship with your mother and siblings.

15You went only to Year 9 at school and have struggled with literacy and numeracy since.  You worked on fishing vessels and a farm hand until 2015, when a spinal injury saw you unable to continue in those labouring type work.  You were in receipt of WorkCover payments for some time thereafter.

16Your drug use commenced around the time you left home, that is in your early teens.  You have struggled with addiction to ice since the age of 17.  That is, nearly half of your life and all your adult life.  That said, there have been some periods of abstinence.  You will need to remain drug free on your release.

17Your criminal history commenced in your late teens though you have been able to stay out of trouble or were able to stay out of trouble from 2012 to 2016.  There were community corrections orders as well as imprisonment for crimes of violence.  In more recent times, your offending has been for driving offences and for the breach of community corrections orders that you were placed on.  Most recently, there have been drug and family violence offences that have seen gaol terms imposed.

18I read the report of Pamela Matthews tendered on your plea.  You reported to her anxiety and depression after ceasing use of methamphetamines.  She did not diagnose any current mental health problems.

19You were in a long term relationship and have three children.  You have telephone contact with them.  You have a daughter from another relationship but have no contact with her.

20You formed a relationship before you were incarcerated and that has been able to be maintained.  You want to settle with your new partner on your release.  She is not a drug user and you are determined to remain drug free yourself.  It will be up to you, including your commitment to drug rehabilitation that is made available to you or that you seek out.  I recognise you will need help.

21You indicated that you will seek out work that is suitable to you given your physical difficulties, more likely in machine operating or perhaps in the construction area.

22You have displayed commitment in prison being part of a disability mentor program helping prisoners with intellectual deficits.  This is to your credit.

23Both you men will receive a benefit for pleading guilty.  It is, along with other matters, indicative of remorse and a desire to put this sort of behaviour behind you.  I have taken into account that the COVID-19 pandemic has caused prisons to be more onerous and stressful.  You have no opportunity for visits.  You are worried about family in the community.

24The crimes were committed in one episode and I intend to impose an aggregate term.  The separate possession of the tiny amount of cannabis for you, Mr Cluney, will be dealt with by it being proven and dismissed.

25Here, I must reassert that breaking into a person's home and assaulting them will not be tolerated.  It must be denounced and others deterred from considering like conduct by the imposition of stern sentences.  Each of you must be deterred given your prior histories and the seriousness of these offences.

26The sentence will be the longest that you have had.  It is time for you to change your ways and not keep coming back before the courts. 
Your rehabilitation is in your interests and that of your partners but also in the interests of the community as well.

27But as I have said, achieving long term lawful ways will be very much up to each of you and certainly dependent upon you giving away the drug lifestyle that has bedevilled you both for many years.

28You are equally culpable in the offending and all other things being equal, you should receive the same sentences.  I have carefully considered your personal circumstances and past criminal histories.  In the end, there is not sufficient to distinguish between you both and you will be punished with the same sentence.

29For the crime of aggravated burglary and recklessly causing injury, each of you are sentenced to an aggregate term of three years with a minimum non-parole period of two years.  You, Mr Cluney, as I have said, for the possession of the drug of dependence, this matter is proven and is dismissed.

30Each of you has served a different amount of time in custody.  For you,
Mr Cluney, that is 524 days which will be declared as part of the sentence that I have just announced.  For you, Mr Janes, 396 days and I will declare that as part of the sentence.  I will ensure that these declarations are entered into the record of the court so the prison authorities are left in no doubt that you have served those periods of time as part of the sentence that I have just announced.

31Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of five years with a minimum of three years and six months.

32Are there any other orders required in this matter, Mr Moore?  I am sorry if I have overlooked something.

33MR MOORE:  No, Your Honour.  I understand that an application was made I think for disposal of the small amount of cannabis but the order has not been filed.  In the circumstances, Your Honour, I do not take that matter any further.

34HIS HONOUR:  All right, we will leave that.  All right, thank you.  Is there anything further required, Mr Turner or Mr Goodfellow?

35MR TURNER:  No, Your Honour.

36MR GOODFELLOW:  No, Your Honour.

37HIS HONOUR:  Thank you.   I thank counsel for their assistance.

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