Director of Public Prosecutions v Collins

[2017] VCC 1987

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01678

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN COLLINS

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	11 December 2017
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	Director of Public Prosecutions v Collins
MEDIUM NEUTRAL CITATION:	[2017] VCC 1987

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             
Legislation Cited:     Sentencing Act1991
Cases Cited:             
Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms B. Goding	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Kylie Moloney Legal

HER HONOUR:

1        Brendan Collins, you have pleaded guilty to two charges of aggravated burglary, one charge of theft and one charge of handle stolen goods.  The maximum penalty applicable to the offence of aggravated burglary is 25 years, in relation to theft a maximum of 10 years and handle stolen goods, a maximum penalty of 15 years’ imprisonment.

2 You have also agreed to a summary charge of committing an indictable offence whilst on bail, being dealt with by me pursuant to s.145 Criminal Procedure Act 2009, and have pleaded guilty to that. The maximum penalty applicable is 3 months’ imprisonment.

3        These crimes arise out of events which took place on 14 and 15 January 2017.

4        It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A).  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. 

5        You were, at the time of this offending, 23 years of age and are 24 years of age at sentence.  There is a co-offender involved in the aggravated burglary that occurred on 15 January 2017, Brandon Burt.  I previously sentenced Burt for his offending on 21 September 2017.  Burt was then sentenced on a charge of aggravated burglary, being a prohibited person in possession of a firearm and one charge of criminal damage. 

6        I turn to Charge 1 which occurred on 14 January 2017.  At approximately 1.00 am that day you went to a house in Forest Street, Wendouree.  David Boyd, who lived at the property at the time, saw you attempting to jemmy open the lock on a caravan which was located on that property.  Boyd confronted you and you fled the scene.  You then contacted Boyd via Messenger, threatening to come around and punch him.

7        You returned to that address several hours later, just after 6.00 am and, after yelling from outside, presented yourself at the front door with a shotgun in your hand.  You demanded to speak to David Boyd.  Boyd’s father told you to leave.  You walked past him, still carrying the shotgun and walked to David Boyd’s bedroom.  You said to David Boyd to “Come outside, come outside and be a man”.  After continuing to demand David Boyd come outside, David Boyd’s girlfriend, Madison Clarke, started pushing you towards the door.  You then left the house (Charge 1).

8        I turn to the second incident.  On this day you and co-accused, Brandon Burt, went to Dwayne Dovers house at 38 Wattle Avenue, Wendouree, and were there for some time drinking before leaving together and going to your house at 57 Wattle Avenue, Wendouree.

9        Once there, you collected a shotgun, knife and jemmy bar.  Burt and you then walked to a house in Boronia Grove, Wendouree, arriving at approximately 1.20 am on Sunday, 15 January 2017.

10       At that time there were three people at the Boronia Grove address.  Glen Jelly (known as “Jelly") was asleep on the mattress in the lounge room.  Jelly’s stepfather, John Dunn, was also asleep, and Jelly’s mother, Kathy McDonald, was asleep in the bedroom. 

11       Once at the house, you kicked the front door open, causing damage to the door and went into the house.  You were holding a jemmy bar and knife.  Burt entered the house and stood in the doorway.  He was holding a shotgun (Charge 2). 

12       You confronted Jelly over an incident in November 2016 involving Dwayne Dover.  You then went into a spare room and grabbed a PlayStation 4 console and put it up your jumper (Charge 3).  During this, Burt stayed at the front door holding the shotgun in his hands, at one stage pointing the shotgun in the direction of Jelly.  You and Burt then left the house on foot.

13       You were arrested at your house in Wattle Avenue, Wendouree, on 15 January and taken to the police station for interview.  Police searched your home and located a Hisense television which belonged to Wayne Dover (Charge 4, handle stolen goods).  Police also located a small jemmy bar.

14       You were interviewed at the Ballarat Crime Investigation Unit on 15 January 2017, and during that interview you admitted going to Boyd’s house armed with a shotgun.  You said you intended to confront David Boyd about a mobile phone you believed belonged to your son.  You said you took the shotgun to “scare him” referring to David Boyd.  You admitted going to Glen Jelly’s house, as you believed Jelly owed you money and said Jelly gave you the PlayStation. 

15       Regarding your record of interview relevant to this offending, Ms Swiney conceded you were less forthcoming about your offending relevant to charges 2, 3 and 4, not wanting to “dob in a mate”.

16       You were charged and remanded in custody and have been in custody since that date, that is, 15 January 2017, ie: 330 days up to and including 10 December 2017. 

17       No victim impact statements were provided to the Court. 

18       I also note, as I have said, I sentenced your co-offender, Burt, in relation to offences of 15 January 2017 and as such parity arises for consideration.

19       You have admitted a number of prior court appearances, which commenced at the Ballarat Children’s Court on 6 April 2009 with your most recent prior court appearance on 7 July 2015 at Ballarat Magistrates’ Court.  Your criminal history contains a significant number of dishonesty and violent type offending, including armed robbery.  For the latter you were sentenced in the Ballarat County Court on 27 May 2015 together with other dishonesty offences to an aggregate 20 months’ imprisonment with a community correction order for a period of 4 years.  You have breached that community correction order by your offending before me.  I stress you are not being sentenced for that breach, rather it is an aggravating feature of this offending that you were on a court order at the time. 

20       A further aggravating feature of your offending in relation to Charge 1 was that you returned to the victim’s property on a second occasion.  Also in relation to both offending dates there was some pre-planning in that you attended with weapons at specifically “targeted addresses”. 

21       You have in the past breached a community correction order, youth supervision order and probation order.  Your criminal history is extensive for someone your age, 24 at date of sentence.

22       You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so.  The community has, by your pleas of guilty, been saved the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial, although I note your victims were cross-examined at a committal hearing. 

23       Following being charged on 16 January 2017, the first committal mention was on 30 March 2017, the matter then adjourned to a second committal mention, then listed for a contested committal.  The contested committal occurred on 22 and 23 August 2017 and on 28 August the matter resolved into pleas of guilty. 

24       In Ms Swiney's outline of written submissions, it was conceded you instructed those representing you to run the contested committal hearing and the victims were required to give evidence at that hearing.  She conceded that was relevant to the timing of your pleas of guilty.  Ms Swiney also submitted you made substantial admissions to your offending in the record of interview.  Whilst that would seem correct regarding the offending of 14 January, the same cannot be said of that on 15 January. 

25       I accept your pleas indicate some remorse for your offending, although I am concerned about the extent of your remorse, in particular noting your history of violent type offending including armed robbery and that Charges 1 and 2 occurred within approximately 24 hours of each other.  Also the contents of the report of Mr Simmons, Psychologist, to which I shall shortly refer. 

26       Your counsel provided a written outline of submissions which she addressed during the course of your plea hearing.  I discussed many aspects of her written submissions with her, including the circumstances of your offending which in relation to the second, third and fourth charge was to obtain payment of a “drug debt” one of the occupants apparently owed.  According to a report from Mr Simmons, you had for about a month prior to being remanded for these offences in January 2017, been trafficking methamphetamine to save money to buy Christmas presents.  That offending was yet to be dealt with in the Magistrates’ Court.  Your explanation for the offending in Charge 1 was, as I understood it, related to refusal to return a mobile phone.

27       Ms Swiney conceded that any offending involving weapons, particularly a firearm, was serious offending and, of course, she is correct.  Ms Swiney also conceded you attended residential properties when the occupants were asleep, making yours serious examples of this offending. 

28       Ms Swiney, however, urged in relation to Charge 1 that the evidence of the Boyd family at committal was that the weapon was never brandished and no threats made.  Further, the witnesses agreed you did not show any aggression in either manner or speech when in the house.  I note you did, however, attend with a firearm. 

29       Ms Swiney referred to your background and history.  Further details were also in the report of Pamela Matthews, dated 11 April 2015, to which I shall shortly refer and in the recent report of Mr Simmons dated 20 October 2017. 

30       In Ms Swiney’s written submissions, you instructed you were closest (emotionally) to your sister, Melissa, who had a dairy farm in New South Wales.  You instructed that upon your release from prison you hoped to stay with her and work on that farm. 

31       In 1999 you started primary school at Urquhart Park Primary School, completed Grade 6, then went to Ballarat High School.

32       You described being the victim of bullying at school and of therefore finishing Year 9 through distance education with the support of your mother.

33       In 2007 when you were 14 years of age, you began farm work and in early 2009 commenced an apprenticeship in agriculture.  In August 2009, you moved out of home into youth housing accommodation. 

34       Your first child was born in June 2010 and you then lived at Waubra with your partner.  Your long working hours adversely affected the relationship and your partner left. 

35       In early 2011, you began using methamphetamine, heroin and abusing prescription medication.  As was acknowledged by Ms Swiney during the course of the plea hearing, it is clear your history of prior offending also involved drug use.  You are well aware that your drug use leads to offending behaviour, and to your offending behaviour involving dishonesty and violent type offending. 

36       In August 2011 you abstained from illicit drug use for a while after being prescribed opiate replacement therapy, Suboxone.  At that time you were also treated for depression. 

37       In 2012 you were drug-free and spent time on your sister’s farm before returning to Ballarat, where you unfortunately recommenced drug use and your criminal activity. 

38       On 23 December 2014, your daughter, Lily Rose, was born. 

39       Ms Swiney referred to the sentence imposed on 27 May 2015 of 20 months and that most of that sentence was served at Loddon Prison.  In custody you completed a Certificate II in Engineering, barista course, food handling, drug and alcohol, anger management and a parenting course. 

40       Upon release from that sentence in August 2016, you lived with your partner and worked for a removalist, however, shortly thereafter in January 2017, you committed the offences before me as a result of your again return to drug use.

41       I was told you continue to have the support of both your mother and father and both were in Court during the course of your plea hearing.

42       Ms Swiney referred to your mental health history.  In 2013 you were admitted to Ballarat Psychiatric Services and for further detox at YSAS in Geelong.  At that time you had already commenced using methamphetamine, heroin and abusing prescription medication.

43       In mid-2013, you commenced a relationship with a new partner who was not a drug user. 

44       During 2014 you were before the Court and “mentally unwell”.  On 4 July 2014, when you were 21 years of age, you were admitted to Ballarat Psychiatric Hospital and self-harmed whilst there, ultimately being discharged on 23 July 2014.  This, it would appear, again during a period of drug use. 

45       In early November 2014, you re-engaged with Ballarat Mental Health Services and on 10 November you presented at hospital but were not admitted.  You were found that night by your father having attempted suicide by hanging.  You were taken to hospital but were released within that day. 

46       By late November 2014, you continued to struggle with your mental health and recommenced your methamphetamine use. 

47       On 1 December 2014, you further offended and were remanded in custody and placed in the Psychiatric Unit at Metropolitan Assessment Prison. 

48       I was told that as early as June 2017 whilst on remand at Port Philip Prison you had been the victim of a number of assaults, although you did not want further information to be provided from the authorities regarding those incidents.

49       In 2015 whilst in custody, Ms Pamela Matthews, Forensic Psychologist, assessed you and her report was tendered.  At the time of that report you were 21 years of age.  In relation to the offences then before the Court (which I note at that time involved four informants), three related to offending in 2013 and February 2014 when you were using drugs and/or alcohol. 

50       Regarding your failure to complete the community correction order, you told Ms Matthews that was because you were using marijuana and methyl amphetamine.  You also described having been prescribed Rivotril and abusing that substance. 

51       Further details were provided regarding your background and history in her report.  You then reported you had not worked from the age of 18.  You were with your first partner for about three years at the time of Ms Matthews’ report, your son then 4 years of age.  That relationship, however, did not last. 

52       You said you were then in another relationship during 2014.  Apparently that relationship broke down when you had a “three to four week bender” and breached your community correction order.  Your partner found a new partner and moved to South Australia.  You then voluntarily admitted yourself to Ballarat Psychiatric Unit (in mid‑2014 and again November 2014). 

53       You told Ms Matthews in that earlier report that you were introduced to marijuana when you were 14 and prior to being remanded for the offences dealt with by the court in 2015, you were using three grams of marijuana a day.

54       You described being introduced to heroin at 17 and you celebrated the birth of your son by using heroin and Valium.  You moved from trying heroin to using half a gram of heroin a day when you were 18.  You then became involved in the armed robbery. 

55       You were then introduced to methyl amphetamine, buprenorphine and other substances but ceased that use when incarcerated at Malmsbury for five months.  At the time of Ms Matthews’ report you were no longer using heroin. 

56       Your methylamphetamine use began when you were approximately 19 to 20 years of age.  Alcohol, you said, was “never my thing” until you were about 20. 

57       You were first prescribed Rivotril for epilepsy at Ballarat Hospital after having a seizure when 16 and since then you said you used weekly “with ice on top”.  You began to abuse Benzodiazepine from the age of 16.

58       Turning to your mental state.  At the time of examination by Pamela Matthews, you presented as a young, immature man, who “seemed cognitively limited”.  Following psychometric assessment, she assessed your IQ at 76 and your overall performance fell in the borderline range of ability.

59       In her opinion, your presentation was consistent with your borderline intellectual functioning and what she thought amounted to “family dysfunction”.  In that regard, I am mindful of decisions including Hogarth v R[1] and Bugmy v The Queen[2]. 

[1] [2012] 37 VR 658 [26]-[31]

[2] [2013] HCA 37

60       Ms Matthews noted your mental state was not caused by your substance use, although substance use, in her opinion, would exacerbate your mental state, which in turn would impact on your substance use.

61       A further report was before me during the course of your plea hearing prepared by Warren Simmons, Consultant Psychologist, dated 20 October 2017.  Further details were provided regarding your background and history.  It was then noted that your mother had recently suffered a mild heart attack and had just been released from hospital.  He said you did not appear to be very distressed when talking about your mother’s condition. 

62       Further details were also provided regarding your education, employment and relationship history.  You described your current relationship with Megan as quite positive, although there was a period of time when you separated when she was about 20 weeks pregnant.  You have a daughter, Lily, who is now nearly 3. 

63       Reference was made to your drug and alcohol history.  In the six months prior to your first incarceration you were using methamphetamine up to 2 points a day.

64       You also disclosed you had been using methamphetamines in the month or so prior to your remand on the offences before me and as previously noted, you said you had been trafficking the drug to have money for Christmas to buy presents.  At the time of this offending before me, you said you were injecting up to three points at a time. 

65       You reported that in custody you completed the 24 and 44 hour drug and alcohol treatment programs and had also undertaken counselling with the local community health centre as part of judicial orders.  You did not think any treatment had been beneficial. 

66       Reference was also made to your medical and psychiatric history.  Mr Simmons noted Ms Matthews’ assessment of your IQ at 76 and also her previous diagnosis you had Post-Traumatic Stress Disorder. 

67       Regarding your current offending, it was Mr Simmons’ opinion you had to have “limited remorse” for your actions.

68       Turning to his opinion, your early childhood experiences left you vulnerable to substance use. 

69       You had an intellectual ability in the borderline range with difficulties with distraction and memory.  You had also been diagnosed with a drug-induced psychosis. 

70       Regarding the current matters before the Court, they occurred at a time when you were using methamphetamines, which impaired your already deficient cognitive functioning.  You did not perceive your behaviour as generating risk, as you said you did not intend to harm anyone.  You were unable to understand the degree to which your actions may have put others at risk.  Your potential for rehabilitation, he said, was guarded.  I agree with that assessment.

71       Turning to your prospects for rehabilitation, Ms Swiney acknowledged, given your history of offending and Mr Simmons’ report, that your prospects of rehabilitation were guarded.  She submitted, however, that was as a result of your low cognitive functioning, mental health and related substance abuse.  You were, she acknowledged, aware of the impact of your substance abuse and link of it to your offending. 

72       Ms Swiney submitted your low cognitive functioning and mental health meant that you fell within the definition of impaired mental functioning, and that you were vulnerable in prison.  She submitted your low level of cognitive functioning mitigated against you being a vehicle for general deterrence.  And further that your cognitive functioning and related drug use reduced your culpability of offending. 

73       When considering whether the principles in R v Verdins & Ors[3] are enlivened, the evidence relied upon requires "rigorous testing" (see Binse v R[4]). 

[3] (2007) 16 VR 269

[4] [2016] VSCA 145 [70]

74       Regarding intellectual disability and the principle of general deterrence where an offender suffers a ‘significant’ intellectual disability, the principle of general deterrence is not eliminated altogether but must be sensibly moderated.  In my opinion, your level of intellectual disability is not ‘significant’ (R v Bux[5] and see also Romeo v R[6]). 

[5] [2002] VSCA 126

[6] [2011] VSCA 45 [13]

75       I also note the decision of Johnston v R[7]. Whilst I note your pre-existing ‘intellectual disability/cognitive functioning', you made the decision to take drugs on this and past occasions when you offended, and you knew drug taking could well lead to your offending.  In my opinion, there should not be a reduction in your moral culpability or the need for general deterrence in your case. 

[7] [2013] VSCA 362 [1]-[16]

76       Ms Swiney conceded, as I have said, that you knew your drug use got you into trouble with the law. 

77       Regarding your prior criminal history, Ms Swiney conceded you offended with drug use in the background, that when you were ‘clean’ and working, you did not offend.  Those occasions, I note, were of short duration and rare. 

78       I do, however, accept consistent with general sentencing principles that your time in custody will be more difficult for you as a result of the matters referred to in the reports of Ms Matthews and Mr Simmons. 

79       Ms Swiney submitted that at age 24 at sentence, you were a youthful offender.  You are.  However, she conceded the principles in R v Mills[8] were not of automatic or usual application.  Each case depends on the circumstances, including the circumstances of the offending as well as of the offender (see DPP v Lawrence[9]).  In that regard, I note your extremely extensive and relevant prior criminal history. 

[8] (1998) 4 VR 235

[9] [2004] 10 VR 125

80       In R v Connolly[10], Coldrey J referred to the principles in Mills and stated:

“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”

[10] [2004] VSCA 24

81       In R v Tran[11] at 462, Justice of Appeal Callaway said:

“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”

[11] (2002) 4 VR 457

82       Turning to parity, at the time of your plea hearing, Ms Swiney had not had the opportunity to read my sentencing remarks in DPP v Burt[12].  In my opinion there are a number of matters which distinguish you from Burt when sentencing.  This includes the number and type of prior criminal history, yours greater than that of Burt, although I do note, as I stated, that Burt also had a concerning criminal record.  Burt was younger than you (albeit just a few years).  Burt also had not committed an aggravated burglary 24 hours prior to his offending on 15 January.

[12] [2017] VCC 1359

83       The principles of Verdins applied in relation to Burt and within those sentencing remarks I referred in detail to the reports then before me and evidence called at his plea hearing.  That is another distinguishing feature.  As part of the community correction order that was imposed, a justice plan was also considered relevant and appropriate, that plan referrable to specific difficulties Burt had, which do not apply to you. 

84       When considering parity I am conscious of the decisions of R v Taudevin[13], Postiglione v The Queen[14] and in the recent decision of Kumas v R[15].  In Nguyen v R[16], Osborn JA said:

“The principle of parity is an aspect of equal justice.  Equal justice requires that like offences should be treated alike, but, conversely, relevant differences between offenders will justify different outcomes.” [21]

[13] [1996] 2 VR 402

[14] (1997) 189 CLR 295

[15] [2017] VSCA 287

[16] [2012] VSCA 119

85       Ms Swiney submitted the appropriate sentence for you would involve you having already served 330 days as at the time up to and including 10 November 2017, together with 12 months’ imprisonment and then a Community Correction Order.  That is, that I not declare 330 days (as at your plea hearing) as pre-sentence detention. 

86       Ms Swiney submitted that in custody you had been drug-free.  I note you have tried detoxification in the past without success, that of course does not mean you will not be successful in the future and I certainly encourage you to abstain from future use.  You have had periods of abstinence in the past particularly when away from peers.  Unfortunately, it would appear that did not last for very long.

87       Your partner, whilst not at Court, I was told remains supportive of you. 

88       Ms Swiney, as I have said, conceded your prospects for rehabilitation were guarded.  I agree. 

89       You said you had not complied with the community correction order because of the anxiety you felt going to Corrections.  I note, however, you agreed to the order being made.  You failed, it seems, to provide appropriate medical material to support your absences and failure to comply with the order.

90       Whilst currently in custody at Port Philip Prison since the recent fire (in the control room), you had not been able to have as much phone contact with family. 

91       Ms Goding, on behalf of the prosecution, submitted the only appropriate sentence was a head sentence with a non-parole period. 

92       She submitted your offending involved two home invasions and referred me to the decisions of Hogarth and R v Meyers[17].  Referring to Meyers, there were a number of features that aggravated your offending, including that it was in company (that is the second set of offending), the time of the night/early morning on which it occurred, that there were innocent victims involved beyond the people who you apparently had an ‘issue’ with in both instances.

[17] [2014] VSCA 314

93       Ms Goding referred to the first charge, and that one of the residents did say they were a bit worried by the gun and about it being used, albeit in response to the submission by Ms Swiney no threats were made nor aggressive behaviour shown by you. 

94       Ms Goding submitted your prospects for rehabilitation were at best guarded and also that there were issues about the extent of your remorse.  I agree with both those submissions. 

95       Regarding the applicability of Verdins, she submitted that the nexus had not been established in the relevant reports.  I agree for the reasons previously stated. 

96       Ms Goding, however, conceded that consistent with general sentencing principles I could take your current mental health into account in making your time in custody more difficult than for persons without your ‘issues’.  I agree, as I have already said. 

97       Turning to the issue of parity, she submitted there were significant differences between yourself and Burt.  I agree.  That you had a more active role in the offending relevant to Charges 2, 3 and 4.  That Burt remained at the door of the house, whereas you walked into various parts of the house, with weapons referred to in Charge 2. 

98       Ms Goding referred to the age difference, Burt, 21, and you slightly older at 23 at the time of the offending, that the weapons used all belonged to you or at least came from your house.

99       You had more relevant prior matters, and your pleas of guilty were entered late and you also ran a contested committal. 

100     You also face additional charges. 

101     The courts have often referred to the serious nature of aggravated burglary, and such was stated in Hogarth.  In Meyers, the Court referred to the need to assess the seriousness of any particular instance of aggravated burglary. 

102     In Meyers the Court stated:

“In our view, the following considerations will ordinarily be relevant to such an assessment:

•      the offender’s intent at the point of entry;

•     the mode of entry;

•      whether the offender was carrying a weapon;

•      whether the offender was alone or in company;

•      the time of day at which the burglary took place;

•      what the offender knew or believed about who would be inside and/or about where the person(s) would be; and

•      whether the offender was someone of whom the victim was particularly frightened.” [48]

103     And further:

“The particular purpose which the offender had in mind at the point of entry is a significant feature going to the gravity of the offence.  Of course, the intent on entry is conceptually distinct from what occurs after entry, but the offender’s conduct once inside the premises will usually enable inferences to be drawn about the intent of entry.” [49]

104     Further, regarding sentencing, the Court had said:

“As these reasons demonstrate, the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices (“CSP“) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.” [6]

105     Regarding your rehabilitation prospects, as I have said many times, I have at best guarded optimism.  However, when sentencing you I must seek to maximise your chances of rehabilitation as they may be. 

106     As well as matters personal to you, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.

107     There is also the need for specific deterrence when sentencing you and I am particularly concerned not only about your prior criminal history, but that you committed two aggravated burglaries within the space of approximately 24 hours at different addresses. 

108     I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending and I remain concerned about that. 

109     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

110     Turning to the sentencing submissions by your counsel, Ms Swiney.  I am mindful of the decision in Boulton & Ors v R[18] and the subsequent pronouncements of the Court of Appeal relevant to those principles.  I am aware a community correction order has both a punitive and rehabilitative aspect to it and I am aware that in Boulton the court has urged courts to “rethink the conventional wisdom about whether prison is really the only option”. 

[18] [2014] VSCA 342

111     Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[19], Alam v R[20], Marocchini v R[21] and Hutchison v R[22] and relatively recently, Gul v R[23].  I did not, however, understand Boulton to remove the requirement a sentencing Judge must take into account all of s.5 Sentencing Act 1991. Nor did I understand Boulton to mean that sentencing principles as stated by the Court of Appeal and other courts relevant to your particular offending now amount to nought.  Nor did I understand Boulton’s decision to remove the instinctive synthesis in sentencing.

[19] [2015] VSCA 95

[20] [2015] VSCA 48

[21] [2015] VSCA 29

[22] [2015] VSCA 115

[23] [2016] VSCA 82

112     I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges, in particular Charges 1 and 2.  Further, I note Court of Appeal Priest JA observed in Hutchison:

“It should not be thought that [Boulton] offers a “Get Out of Gaol Free” card in situations where a sentence of imprisonment is necessary to satisfy the various purposes for which a sentence may be imposed.” [17]

113     I am also aware of the Sentencing Act s.5(3)-(7) which gives statutory form to the principle of parsimony.

114     In determining the appropriate sentence, I take into account principles of totality and proportionality. 

115     To impose the sentence urged by Ms Swiney, in my opinion, would lead to a sentence that is manifestly inadequate in all the circumstances, taking into account not only the gravity of your offending but also all matters in mitigation and personal to you. 

116     I sentence you as follows. 

117     On Charge 1, convicted and sentenced to 3 years’ imprisonment.

118     On Charge 2, convicted and sentenced to 4 years’ imprisonment.

119     On Charge 3, convicted and sentenced to 10 months’ imprisonment.

120     On Charge 4, convicted and sentenced to 12 months’ imprisonment.

121     In relation to the summary charge, you are convicted and sentenced to 1 month’s imprisonment.

122     I order the following in relation to cumulation and concurrency:

123     Charge 2 is the base sentence.

124     I direct that 12 months of Charge 1 be served cumulatively upon Charge 2. 

125     I direct that 4 months of Charge 3 be served cumulatively upon Charge 2. 

126     I direct that 5 months of Charge 4 be served cumulatively upon Charge 2. 

127     And I direct that 14 days of the summary charge be served cumulatively upon Charge 2.

128     That results in a total effective sentence of 5 years, 9 months and 14 days’ imprisonment and I direct that you serve a period of 3 years and 9 months' imprisonment before you are eligible for parole. 

129 Pursuant to s6AAA Sentencing Act 1991, I declare that had you been found guilty of these charges following jury verdict, in other words, if you had pleaded not guilty to all these charges and been found guilty of them I would have sentenced you to a term of imprisonment of 8 years gaol with a 6 year non-parole period.

130 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 338 days in custody (up to and including yesterday, 18 December 2017), and I direct that be entered into the records of the Court.

131     The prosecution made application for a forensic sample that was not opposed by counsel on your behalf and I make the order in the terms sought and it will be for a saliva sample and I do so on the basis of the seriousness of your offending and your prior criminal history and I must advise you that the authorities may use reasonable force in order to obtain that sample.

132     The prosecution also made application for a disposal order and this was not opposed by your counsel and I make the order in the terms sought. 

133     Now, first things first.  The max, did you get that; does it all work out?

134     MS SWINEY:  Yes, Your Honour.

135     HER HONOUR:  All right, now what about PSD?  Is everyone happy with that or agree, I should say, with that?

136     MS MUNRO:  Yes, that was my calculation, Your Honour.

137     HER HONOUR:  All right, and is there anything to do with the figures that you don't understand?

138     MS MUNRO:  No, Your Honour.

139     MS SWINEY:  No, Your Honour.

140     HER HONOUR:  Excellent, all right.  Well, thank you very much. I will sign those documents.  Thank you very much.  Mr Collins you will have to go out now, all right.  Thank you very much, sir.

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