Director of Public Prosecutions v Conroy

[2019] VCC 1334

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02112

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL CONROY

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JUDGE:	Her Honour Judge Marich
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2019 and 27 March 2019
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Conroy
MEDIUM NEUTRAL CITATION:	[2019] VCC 1334

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr G. Hughan for plea Mr P. Lunt for sentence	Peter Lunt and Associates Criminal Lawyers

HER HONOUR:

1Joel Conroy, you have pleaded guilty to an indictment containing one count of aggravated home invasion which carries a maximum penalty of 25 years' imprisonment, one count of armed robbery which carries a maximum penalty of 25 years' imprisonment, one count of recklessly causing injury which carries a maximum penalty of five years' imprisonment and one count of possess drug of dependence punishable by maximum of one year imprisonment and/or 30 penalty units.

2The circumstances in which you came to commit those offences are set out in the Amended Summary of Prosecution Opening dated 26 February 2019 which was read into evidence at your hearing and exhibited in this matter as Exhibit A. I have had regard to that opening when determining the appropriate sentences in your case.

3In the course of the plea in mitigation of penalty which extended over two hearing days, the prosecution also filed the following material in your matter; statement of Dr Ian Lowe, dated 14 June 2018, Exhibit B; email from prosecution dated 21 March 2019, Exhibit C.

4You filed the following material; written Plea Submissions and Chronology dated 6 March 2019 (Exhibit 1); a psychology report prepared by Jeffrey Cummins dated 25 February 2019 (Exhibit 2); a bundle of certificates (Exhibit 3); your statement dated 6 March 2018 (Exhibit 4); your statement dated 15 October 2018 (Exhibit 5); a bundle of medical certificates (Exhibit 6); and character references from Sally and Elise Conroy (Exhibit 7).

5I have had regard to each of the exhibited documents as well as the matters addressed in the oral plea.

Circumstances of the offending

6Three co-accused in this matter, Corey Henning, Trista Diston and Peter Fidler are listed to stand trial at a future date. Your co-accused, Mr Ropata's matter, has also been adjourned for a further hearing.

7The victim in this matter is Aaron Wood who at the time of the offending was aged 32 and resided at an address in Morwell.

8In the week prior to 23 February 2018, Ms Diston was at Mr Henning's house in Frankston North and there spoke to you. She told you about Mr Wood and that Wood was likely to have drugs, money or vehicles at this house.  You both discussed a prior dispute between Mr Henning and Mr Wood. Ms Diston wanted help with doing a job at Mr Wood's house and you agreed.

9Between 22 and 23 February, Ms Diston exchanged text messages with you and Mr Henning to make arrangements for the job. Some of the messages confirmed Ms Diston seeking 22 calibre ammunition, other text messages concerned all of the offenders meeting up prior to going to Mr Wood's house.

10On 23 February 2018 in the early hours of the morning, Ms Diston arranged to meet with the other accused outside Drouin Secondary College with you driving your Magna sedan. You then drove the other four co-accused to Mr Wood's house in Morwell and you arrived at about 3.10 am.

11Ms Diston left the vehicle but stayed outside the property to make observations before reporting back to the group. You and Mr Ropata in company with the other two male accused left the vehicle and approached the house forcing open the closed front gate. Mr Ropata was armed with a homemade shotgun. You were armed with a metal bar. Mr Henning held a homemade firearm and Mr Fidler was armed with a machete. All four of you had your faces covered.

12Mr Henning then kicked open the front door and entered the house followed by you, Mr Ropata and Mr Fidler. This is the offending the subject of your first charge of aggravated home invasion.

13Ms Diston stayed outside the premises and made observations of the scene.  The four of you inside the house confronted Mr Wood. Mr Henning pointed the double-barrelled shotgun in his face, then aimed it at Mr Wood's leg. 

14You made demands for money and drugs which led Mr Wood to point to the coffee table where there were containers which held cash and methylamphetamine. Mr Wood had won the cash earlier on the poker machines. Mr Henning demanded to know where the rest of it was. Witness, Chris Beckett, was in the toilet at the house where he was confronted and menaced by Mr Fidler. You picked up the money on the table and turned to leave. This is the offending the subject of your Charge 2 of armed robbery.

15You were an active participant in the armed robbery in that you were in possession of an offensive weapon prior to actually committing the theft by taking money from the coffee table and you were taking direction from Mr Henning during the armed robbery (Exhibit C).

16As you were walking away, Mr Henning fired the shotgun and hit Mr Wood in the leg. Mr Wood screamed and fell to the floor. Mr Wood was later taken to the Alfred Hospital and had multiple operations as a result of the wound culminating in the amputation of his left leg above the knee on 7 March 2018.  He engaged in a protracted form of therapy (Exhibit B). I have not been provided with a victim impact statement but the injury will self-evidently be of enduring effect to the victim for the rest of his life.

17You have pleaded guilty to Charge 3, causing injury recklessly in connection with this result; that is you foresaw that an injury would probably result from your conduct but not that particular injury and not a serious injury (Exhibit C), and I do not sentence you on the basis that any serious injury was caused or foreseen by you.

18Returning to the circumstances at the scene, after Mr Wood was shot in the leg. Mr Becket came out to find Mr Wood and call 000. You all ran to the car putting the weapons in the boot of the car. You then left the scene and you drove everyone to their homes.

Investigation, arrest and interview

19You were arrested at 5 March 2018 at your home. In the course of the search of your premises, police located the vehicle that you drove at the time of the offences, clothing worn by the co-offenders and 1 gram of cannabis (Charge 4).

20You participated in a tape-recorded record of interview at City West police station and made admissions to the offending. You also made a written statement identifying your co-accused, Mr Henning, on 6 March 2018 (Exhibit 4).

21On 16 October 2018 at your committal proceeding, you made a further written statement to police on the understanding that you would give evidence in accordance with that statement against your co-accused (Exhibit 5).

22Henning and Diston were arrested on 5 March 2018. Fidler was arrested on 3 May 2018. Their trial is pending.

Plea of guilty and remorse

23You were charged following your interview and remanded into custody. A number of plea offers were made prior to the listing of the committal proceeding on 15 October 2018 including your offer to plea to the aggravated home invasion charge prior to the committal date.

24The matter eventually resolved at the committal proceeding without you cross-examining any witnesses. As I have noted, on the second day of the committal listing, you made your further statement and provided an undertaking to give evidence if called upon to do so by the prosecution.

25As summarised by your counsel, you expressed remorse in your interview, you wrote a letter of apology to the victim, you have cooperated with the investigation. You have also expressed your remorse to your mother as stated in her reference (Exhibit 7).

26I accept and take into account that you pleaded guilty at an early stage and as submitted by your counsel that this plea is well-indicative of remorse as well as having utilitarian value.

27Indeed, in the course of your plea in mitigation of penalty, you gave evidence of your intention to give evidence in accordance with your undertaking and also gave sworn evidence of your remorse.

Personal circumstances

28You are now 29 years of age and were 28 at the date of offending.

29Your parents separated when you were two or three. Thereafter, you had minimal contact with your father until you dropped out of school at age 15 in Melbourne and reconnected with your father in Perth. You were never able to create a close relationship with your father whom you described to Jeffrey Cummins as an alcoholic, amphetamine user with a cannabis dependency.  Your father worked as a crane driver and died of liver and kidney problems approximately seven years ago.

30Your mother is in her mid-50s and is a skilled critical care nurse, now working in the energy sector and hence she often spends extended time overseas with her partner.  She has never been in trouble with the law. You and she are close and I have read and considered the reference that she provided carefully (Exhibit 7). You report that she is now living at a temporary address with her partner because your co-accused became aware of her address and was harassing her.

31You have a 27-year old sister with whom you have had limited contact over the last few years. I have received and read carefully her reference for you (Exhibit 7).

32You were sometimes the victim of verbal abuse from your biological father and your stepfather and was sexually abused at the age five or six whilst you were holidaying in Sydney with your mother. You have never had any counselling about this.

33You attended Red Hill Consolidated Primary School while you were living with your mother and sister in Flinders. You then attended Rosebud Secondary College where you were involved in a Gifted Student Program and you effectively completed nearly four years schooling over two years. Aged about 13 or 14, you befriended a student with whom you started skipping classes, drinking and using cannabis. You were granted a Year 10 pass at age 15 and then, as I have said, moved to Perth to reconnect with your father.

34Upon moving to Perth, you only maintained contact with your father for the first few months but then you stayed in Perth for four years working as a builder's labourer and concreter. At age 19, you returned to Victoria permanently and attended Chisholm TAFE in Frankston and made a further attempt to finish Year 10. You worked as a pizza delivery driver and then assisted your stepfather working at a vineyard in Mornington. You were employed casually in a number of positions until at age 22 you worked as a real estate sign installer for about 18 months, then at age 23, you commenced a boiler making and engineer apprenticeship.

35In about 2015, you learned you were the father of a son, then aged one, conceived during a brief relationship. You then entered a more permanent relationship with your son's mother but it did not last and she obtained an intervention order against you. You last saw your son in January 2016 which has caused you significant turmoil and distress.

36On 16 June 2016, when you had nearly finished the apprenticeship, you were involved in a motorcycle accident colliding with a four-wheel drive on the way home from work. You suffered multiple fractures and were admitted to the Alfred Hospital for one week and underwent a reconstruction of your left wrist and right shoulder and you received treatment for multiple right foot fractures (Exhibit 6). You were in a wheelchair for two or three months and over the 12 to 14 months following the accident were unsuccessful in your attempts to return to work as you were diagnosed as suffering panic attacks.

37As a result of your accident, you have a plate in your left wrist and right shoulder.  You were born with a hip dysplasia for which you had surgery at a young age but you still suffer some residual pain in your hip from the dysplasia and you still regularly experience pain in your right shoulder and right foot from your accident.

38Following your motorcycle accident, you were prescribed oxycontin and ended up regularly taking it to excess often up to eight tablets daily, though you managed not to resume that habit when you were last released from custody. Also after your accident, you escalated your recreational use of cannabis, started smoking up to 5 grams a day. You started using ice regularly at 23 and have used it on and off sometimes smoking up to 1 gram a day.

39You have admitted seven prior Magistrates' Court appearances. In May 2016, you pleaded guilty to an unlawful assault which I understand may have involved a push to your former de facto partner for which you were fined $650. You were later sentenced to a short period of imprisonment in March 2017 for possessing a dangerous article in a public place and other offences relating to contravening a family violence intervention order. Also on that same day, you received 130 days' imprisonment for other contraventions of a family violence intervention order. I understand those offences related to an order that your sister with whom you were very close as I have mentioned took out against you.

40This is not your first time in custody nor your first appearance for an offence involving a threat of violence and it is very substantially more serious than any offence that you have previously committed.

41You are now held in protective custody at your own request as a result of your cooperation with authorities.

42Mr Cummins has excluded any antisocial personality disorder but has expressed the opinion that you are significantly psychologically traumatised as a result of your motorcycle accident on 16 June 2016 which has triggered the development of an adjustment disorder with mixed disturbance of emotion and conduct which has become entrenched and chronic with time.

43You were also significantly intoxicated on methamphetamine and alcohol in the leadup to the offences.

Prospects of rehabilitation

44Mr Cummins is of the view that your risks of committing a further offence of violence through using the best practice assessment tool are moderate and that is also my assessment of your prospects of rehabilitation given all of the circumstances including your previous history.

45You have told Mr Cummins that you are very optimistic that you will not resume illicit drug use when you are released from custody. Also, as I have noted whilst abstinent from drug use whilst in custody, you have gained insight into the link between your usage and the offending.

46You have apologised to the victim, you have shown your remorse. 

47You have the ongoing support of your mother, ex-stepfather and your mother's current partner. All of these are matters that will improve your prospects of rehabilitation should you be able to remain abstinent from drugs. It is your responsibility to continue to avail yourself of the courses available to you whilst in custody and I note you have completed several courses successfully whilst on remand (Exhibit 3).

Cooperation with authorities

48As I have mentioned, you have twice made a statement to police incriminating your co-accused and you have provided an undertaking before me to give evidence in their pending trial. This information may well become vital in the prosecution of others particularly in circumstances in which Mr Henning has denied presence at the scene. The prosecution has accepted that the value of your assistance is significant. 

49Indeed, in the course of your plea in mitigation of penalty, as I have mentioned, you gave evidence of your intention to give evidence. As a result of your cooperation, you have been threatened whilst in custody as has your mother.  You are now in protective custody; your mother has had to move address.

50In the words of Weinberg JA with whom Ashley JA agreed in Cottee [2010] VSCA 285 at paragraph 25,

"It is very much in the public interest that those who commit offences be given every encouragement by the courts to inform upon their co-offenders, and to give evidence against them. If that means that those who are informers receive the benefit of sentences that are significantly lower than they might otherwise merit, that is a price which society must be willing to pay."

51It is my intention to give a significantly lower sentence in your case than the circumstances warrant as a result of your cooperation and assistance.

52Section 10AC of the Sentencing Act 1991 (Vic) requires that in sentencing, an offender for an offence of aggravated home invasion which is your Count 1, I must impose a term of imprisonment with a non-parole period of not less than three years unless I find under s 10A that a special reason exists.

53One of the special reasons available under s 10A(2)(a) is if the offender has assisted or given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence. In the circumstances of your case, I find that this special reason exists and accordingly, I am released from the obligations imposed upon me by s 10AC.

Seriousness of offending

54In relation to your role in the offending, in summary, you provided transport in your own vehicle to and from the victim's house. You entered the house armed with a metal pole and you participated in the armed robbery at the direction of Mr Henning. 

55You became involved when Mr Henning had discussed with you the fact that the victim who had dealt drugs to Mr Henning owed him some money. You told Mr Cummins that before going to the address and doing this offending, you had been drinking a lot of alcohol and had used a lot of ice which you thought affected your morality. You considered that since abstaining from ice since you have been remanded into custody, as a result of your insight, your intelligence and the chance to reflect, you have come to appreciate that your drug use led to a deterioration of your mental health, perception and judgment. You maintain that your role was intended to be as the driver. It was not until shortly prior to entering the property that you were persuaded to enter the house where upon you were provided with the metal bar. You then learned that a firearm was going to be used to intimidate  the victim. You were also responsible for the taking of drugs and money in circumstances in which the victim was intimidated  by you carrying the metal pole.

56You say that at no stage prior to the shooting were you aware that the firearm was loaded. Even when presented with the clear evidence that a firearm or firearms would be used to intimidate the victim, you picked up that metal bar and you entered the victim's own home with the others where you engaged in the armed robbery and you foresaw the probability of injury occurring and injury did occur.

57I consider this offending to be a serious example of each of Charges 1, 2 and 3.

58Ordinarily the Court of Appeal has said many times that charges of aggravated home invasion and armed robbery require the imposition of substantial and lengthy prison terms.

Relevant sentencing principles

59I take into account the purposes for which sentence must be imposed including the need for deterrence, both general and specific. I accept that the gravity and prevalence of the offences of aggravated home invasion and armed robbery in particular require a conclusion that general deterrence is the primary sentencing purpose. I also consider that some specific deterrence is needed in your case given your run of offences.

60The sentence I will impose will punish you and denounce your behaviour and allow for community protection whilst allowing for your continued efforts of rehabilitation.

61In your case, as I have mentioned a number of times, I have provided a substantial discount in your sentences by reason of your cooperation and assistance and its effect upon you and family in terms of onerous conditions of imprisonment and the threats against your mother in addition to the other matters in mitigation of penalty that I have set out carefully.

Sentence

62On Count 1, aggravated home invasion, you are convicted and sentenced to four years, and three months' imprisonment.

63On Count 2, armed robbery, you are convicted and sentenced to two years and three months' imprisonment, four months of which must be served cumulatively upon the sentence imposed on Count 1 and other sentences.

64On Count 3, recklessly cause injury, you are convicted and sentenced to an aggregate of one year and nine months' imprisonment, three months of which must be served cumulatively upon the sentence imposed on Count 1 and other sentences.

65On Count 4, you are convicted and discharged.

66This is a total effective sentence of four years and ten months' imprisonment and I order that two years and ten months of that term be served before parole eligibility.

67I will make a declaration of pre-sentence detention of 403 days excluding today.

Section 6AAA declaration

68In this case, not only have you made admissions and pleaded guilty but from the very outset of your engagement with police, you have provided cooperation and assistance. This is not a case where I can quantify the discount for a plea of guilty under s 6AAA separately to the discount I have afforded you due to your cooperation and assistance.

69Accordingly, pursuant to s 6AAA of the Sentencing Act, I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a significantly longer sentence.

70I understand there is an application of forfeiture of the items listed in the schedule which are the mobile phone and I will make that order.

71Now, in relation to s 464ZF, is there consent to the taking of the sample?

72MR LUNT:  Your Honour, might I just ‑ ‑ ‑

73HER HONOUR:  I think that that would be wise.

74MR LUNT:  I am sorry to have to do this.  I better just get those instructions.

75HER HONOUR:  Yes, by all means.  For what it is worth, it is a fairly serious example of some of the offences but it is an entirely a matter for your client as to whether he consents or whether I determine the application.

76MR LUNT:  Indeed, Your Honour.

77HER HONOUR:  Thank you.

78MR LUNT:  Your Honour, the instructions are to consent to that application.

79HER HONOUR:  Yes, I think that is very wise. Application has been made under s.464ZF(2) for the taking of a scraping from the mouth and having considered the seriousness of the circumstances of the offences, in particular all three of Charges 1, 2 and 3 on the indictment, I am satisfied in all the circumstances the making of the order is justified given the seriousness of the circumstances and I note that the order is by consent.

80If you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, the sample to be taken will be a blood sample and police may use reasonable force to take that blood. They will not take blood if you consent to the taking of the mouth scraping.

81Lastly, I note that there has been application for a disposal order of the plastic bag containing cannabis and a plastic bag containing black jeans, grey hood, a jacket, gloves and a bandana and I will make that order as well.

82Are there any other matters that I have overlooked?

83MR LUNT:  No, Your Honour.

84MR PICKERING:  No, Your Honour.

85HER HONOUR:  No.  Thank you.  And no errors that I need to correct in the running ‑ ‑ ‑

86MR PICKERING:  Not that I can find, Your Honour.

87MR LUNT:  No, Your Honour.

88HER HONOUR:  Thank you very much to you both.  You are all excused.  Thank you.

89MR LUNT:  As Your Honour pleases.

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