Director of Public Prosecutions v Corey
[2017] VCC 1730
•20 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-17-01500
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAX COREY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2017 | |
DATE OF SENTENCE: | 20 November 2017 | |
CASE MAY BE CITED AS: | DPP v Corey | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1730 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – plea of guilty to one charge of arson, theft, negligently deal with proceeds of crime and a related summary charge of drive whilst disqualified – combination order – jail to be followed by Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Manning | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms A Hancock | Geelong Criminal Lawyers |
HER HONOUR:
1 Max Corey, you have pleaded guilty before me to one charge of arson, one charge of theft, one charge of negligently deal with proceeds of crime, and a related summary charge of drive whilst disqualified.
2 The offences are serious, and that is reflected in the maximum penalties that are prescribed by law, which are as follows:
· arson, level 4, 15 years’ imprisonment
· theft, level 5, 10 years’ imprisonment
· deal with proceeds of crime, level 6, 5 years’ imprisonment
·
summary offence of drive whilst disqualified, subsequent offence,
240 penalty units or two years’ imprisonment.
3
The offending, the subject of the charges, took place on Wednesday 29 March 2017. You were in company with two other co‑accused, Max Forti, who was then aged 42, who resided in Norlane and was unemployed; and
Wesley Hargreaves, then aged 23, who resided in Corio and also was unemployed. Both co‑accused have pleaded not guilty, and their matter is proceeding to a contested committal hearing.
4
I was provided with the prior criminal histories in respect to the two
co-accused. I noted that Max Forti has a long criminal history, spanning almost 27 years and he has multiple convictions for drug-related offending, weapons offences, driving offences, and dishonesty offences. The other
co-accused Wesley Hargreaves, has a shorter criminal history of about two years’ duration, and he has convictions for drug offences, driving offences, and assault.
5 You admitted before me to your criminal record. You have offended in both Queensland and Victoria. In Queensland, as an 18 year old, you were dealt with in the Brisbane District Court on 8 October 2012 in respect to a charge of attempted robbery, two charges of assault occasioning bodily harm, and three charges of stealing, for which you received a total effective sentence of nine months' imprisonment, suspended for 12 months.
6 On 10 October 2012, you were dealt with at Caboolture Magistrates' Court for unlawful driving of a motorbike on public land. You were fined and you were also dealt with for receiving tainted property, for which you received a good behaviour bond.
7 Your Victorian appearances took place on 1 August 2014 at Geelong Magistrates’ Court, where you were dealt with in respect to some driving offences, theft, and dishonesty offences, for which you were placed on a Community Correction Order of one years' duration; that was successfully completed.
8 On 17 January 2017, you were dealt with again at the Geelong Magistrates’ Court. On that occasion, there was a large consolidation of matters that concerned driving offences, drug offences, possess controlled weapon without excuse, fail to answer bail, contravene a conduct condition of bail, commit indictable offence whilst on bail, intentionally damage property, use unregistered motor vehicle, dishonestly undertake in retention of stolen goods, drive whilst disqualified, contravene Family Violence Order, criminal damage, unlawful assault, and contravention of a conduct of condition of bail; for which you received an aggregate term of imprisonment of 47 days, to be followed by an 18 month Community Correction Order, and the conditions were that you were to undergo supervision, perform 180 hours of community work, and undergo treatment and rehabilitation as directed, including a men’s behavioural change program or similar program.
9 The current offences for which I am about to sentence you constitute a contravention of that order, and that is an aggravating feature of this offending. Breach proceedings have yet to be dealt with by the court.
10 I shall now sentence you in respect to this current offending, on the basis of the prosecution opening that was read at the plea hearing. The contents of that opening were not disputed.
11 The background to the offending, was that on 28 October 2016, Max Forti attended Golden Plains Self Storage facility with another male. Forti signed a rental contract to rent unit No.65, using false identification in the name of David Mitchell.
12 On 23 March 2017, members from the Geelong Police attended the storage facility and executed a search warrant. Located in unit No.65, Forti's unit, were:
(i)a shotgun;
(ii)live ammunition rounds;
(iii)passports in assorted names;
(iv)multiple driver licences in assorted names; and
(v)a number of other identification documents.
13
Some six days later, on 29 March 2017, you were in company with
Wesley Hargreaves and Max Forti. You were driving a Holden Calais on the Midland Highway, Bannockburn. At that time, you were disqualified from driving a motor vehicle; that constitutes the facts of Summary Charge 4.
14 The vehicle registration, plates WLS735, attached to the Holden Calais, were stolen at an unknown time, between 25 and 26 March 2016 from an address in Point Cook; that constitutes Charge 3, negligently deal with the proceeds of crime.
15 At about 4 am, you drove to the Caltex Service Station on the Midland Highway, Bannockburn. You and your passengers entered the store and purchased some food and drinks, and after purchasing those items, you left in the vehicle.
16 Shortly afterwards, you attended at 14 McKenna Street, Bannockburn. At that address, Jason Horton had parked his boat in the driveway. The three of you approached the boat, unhooked a red-coloured plastic petrol tank, and left the scene with the tank. The tank was valued at about $60; that is Charge 2, theft.
17
You were disturbed when a neighbour observed one of your group, attempting to gain entry into a ute that was parked nearby, and that was at about
4.16 am. The neighbour described the vehicle that was being used as a silver/gold-coloured Holden Sedan, with distinctive dark rim wheels. He reported the disturbance to the police, and further, he gave police information about the identity of the vehicle, which he saw some days later abandoned on the Princess Highway, Lara. The vehicle was later recovered and examined and fingerprints located on the vehicle were identified as belonging to you.
18 On 29 March 2017 at about 4.25 am, you were driving the vehicle to Bannockburn Industrial Park. You drove around the estate for a short period and parked on Holder Road, Bannockburn, about 50 metres south of the Golden Plains Self Storage facility.
19 Each of you exited the vehicle. There was then a discussion in relation to setting the premises on fire. You returned to the vehicle to wait for the other two men. Max Forti approached the storage facility gate, carrying an item that was believed to be the stolen fuel tank that you had earlier obtained at the Horton premises.
20 Forti and Hargreaves gained access to the front reception area of the facility. They splashed the contents of the fuel container over the benches of the office and ignited the fire.
21 CCTV footage from a nearby business captured the vehicle being driven by you, reversing closer to the storage facility. Hargreaves is seen running to the vehicle, and Forti is seen leaving the premises carrying a large item and then returning to the property.
22 The fire took hold very quickly in the front office and reception area of the storage facility. There was an explosion through the office area, followed by a second explosion, at which point Forti is seen running from the premises towards the vehicle.
23 All three of you then left the scene, the vehicle being driven by you. The fire spread to the kitchen and storage room, and extended into the adjoining storage sheds; that is Charge 1, arson.
24 The storage facility consisted of five separate buildings occupying a block on the western side of Holder Road. The fire was contained to the front building of the storage facility, and the most significant fire damage occurred to the north-eastern corner of the building where the front reception area was located. The roof and bricks collapsed, and furnishings, fixtures, and wall frames were largely consumed, and the total value of the damage caused by the arson is estimated to be $455,124.30.
25 Individuals who had storage units rented also suffered damage to their personal possessions, as set out in the prosecution opening:
(i) John Creswick – unit 25 – antique furniture, a Bolex movie camera, a wine vessel, and storage shelving: $6,000.
(ii) Ray Boyd – unit 26 – household furniture, tools, car parts, assorted miscellaneous household items: $63,309.
(iii) Mark Dean – unit 27 – a vinyl record collection, audio equipment, clothing and other personal property: $12,030.
(iv) Shaun Jeffery – unit 30 – photographs, jewellery, personal effects and tools: $2,900.
(v) Shae Clark – unit 31 – household furniture and power tools: $10,290.
(vi) Julie Dwyer – unit 35 – household furniture and white goods: $15,000.
(vii) Amylee Jackson – unit 36 – household furniture and power tools: $15,000.
(viii) June Clarke – unit 37 – a computer and television: $2,050.
26 Following investigation by Victoria Police, arson chemist Laura Noonan's examination identified the presence of flammable liquid at the seats of the fire, which were determined to be the office floor on the carpet and over the desk and computer area of the reception.
27 It was determined that the fire had been deliberately lit. Further examination also identified the remains of a boat petrol tank inside the office area, consistent with the one stolen from McKenna Street (the Horton premises).
28 You were arrested on 10 April 2017 and interviewed.
29 Initially you told police a false story; you said that you drove to Bannockburn to meet the co‑accused so that you could sell your car to Max Forti, that you drove around the area for about half an hour to test-drive the vehicle, and that you were paid $250 before being picked up by your girlfriend.
30 When questioned about the theft of the boat petrol tank, you said you thought they were getting fuel because the car needed fuel. You stated that you and the co‑accused attended the storage facility and were having a cigarette whilst discussing setting fire to the place. You told police Forti was paranoid about things that were stored at the unit, and that you had had an argument with the co‑accused about not committing the offence. You told police you did not want to be involved, so you waited in the car for them and did not participate in the lighting of the fire.
31 Subsequently, both Forti and Hargreaves have been arrested and interviewed. They have made no admissions in respect to their involvement with the fire.
32 Mr Corey, each of the offences that you have been charged with are serious. In particular, the charge of arson is a serious offence, and that is marked by the maximum penalty prescribed, namely 15 years' imprisonment.
33 The owner of the property and the people who rented the storage units were innocent victims, whose property has been either damaged or destroyed. As was pointed out in the sentencing conversation to you by the Elders, to lose such personal property, in particular photos and memorabilia, would have had a substantial impact upon each of the victims.
34 I accept that your involvement in the arson was situational, and that you were influenced to be involved by your co-accused, who are principally responsible for this crime. You were using drugs and subject to their negative influence at the time.
35 The prosecution accepted that you played a minor role only, but nonetheless, submitted your role was of some significance, insofar as you were able to assist the other two co-accused, stealing the petrol used to fuel the fire, by driving them to the scene, and then by decamping once the fire had been started. You did nothing to stop your co-accused from executing their expressed intention to set fire to the building.
36 In formulating the appropriate sentence, I must impose just punishment, and I must emphasise general and specific deterrence, and on behalf of the community, formally denounce your conduct.
37 Turning to your personal circumstances, I note you are 23, and you are the youngest of three sons born to your parents. Your parents separated when you were about three years of age. You identify as a young Koori male.
38 Through your maternal grandfather, you have Torres Strait Islander heritage, and you are keen to learn more about your past and find out about your family of origin.
39 You were primarily raised by your mother, and had no real contact with your father, apart from one unfortunate occasion. Your history was set out in the report of Carla Lechner and I accept that during your childhood, you were exposed to violence, and also drug abuse involving your mother.
40 You witnessed your mother assaulted by your father on the one occasion when you went to meet him in your early teens. Apart from that one occasion, you have not had any realistic relationship with your father.
41 I accept that the effects of profound deprivation do not diminish over time, and that your profound history of deprivation as a child has been given full weight in the determination of the appropriate sentence that I have formulated.[1]
[1]Bugmy v R [2013] ALR 192.
42 Your mother is currently in ill health, undergoing treatment for cervical and breast cancer. She lives in Queensland. She wrote a letter to the court, which states that she is aware of these proceedings, and remains supportive of you.
43 Your two older brothers live in Queensland, and you have no real relationship with them currently.
44 In the past you enjoyed a relationship with Melanie, with whom you have a six year old son, Jett. Following your arrest and remand on these offences, that relationship has broken down. You have had no contact with your son.
45 You had difficulties at school, and you were noted to be always anxious. You left part-way through Year 9; you were expelled for fighting.
46
Once you left school, you left home and moved to Melbourne with your then girlfriend, and lived with her mother for a couple of years. You then
couch-surfed for about a year, and returned to Queensland.
47 You then lived with an older brother Kurt, but that relationship broke down, when you began to abuse the drug ice, which put a strain on your relationship with your older brother and his partner.
48 You have worked as a butcher and also a furniture removalist. You last worked with Pickfords last year.
49 Ms Carla Lechner interviewed you, and her report dated 3 August 2017 sets out in comprehensive detail her findings. She considered that your offending arose in the setting of a longstanding "drug addiction problem, with underlying symptoms of complex developmental trauma and major depressive disorder".
50 Her note is that you began using drugs at age 12. She concludes that the offending related in many respects to your lifestyle, associated with drug use.
51 At the time of her interview, she said that you evidenced a range of symptoms of major depressive disorder. She noted that you had sustained a kick to the head at age 17 and suffered a seizure, and you were diagnosed with epilepsy, and you have continued to be treated with Epilim ever since. You have had two subsequent seizures, and one recently whilst at Barwon Prison.
52 You explained to her the context to the offending, was that you had been homeless following your release from prison, and you were using your vehicle for your home. You had been using ice and GHB with one of the co‑offenders prior to the offences being committed.
53 Ms Lechner recommends intensive treatment in order to support drug abstinence, and I agree with her recommendation.
54 You have utilised your time spent in prison well. You have undertaken some one-on-one psychological intervention through the mobile forensic mental health service. You also completed a program on managing loss, and coping with change, and some general education and food safety units, and cleaning operations. You have been drug free since you have been in prison, and a urine sample undertaken on 27 September 2017 was negative for all drugs.
55 You have a relationship with Ms Kirby, the Aboriginal wellbeing officer, who has been supporting you, and she has obtained further information concerning your family history and background.
56 In addition, you made application through Ms Kirby to be allowed to participate in the Ngwala program, an Aboriginal community-controlled organisation that is dedicated to delivering specialist alcohol and drug residential rehabilitation and outreach support services. They run three centres that offer a 16 week highly structured residential program, that supports relapse prevention and men’s behavioural change. But unfortunately, given your current conditions on remand, you are unable to be entered into one of those programs.
57 Ms Hancock, on your behalf, highlighted a number of mitigating factors, all of which I accept. I note that your matter was settled at a further committal mention on 28 July 2017, and then it was listed for a plea hearing in the Koori Court division of this court.
58 It is accepted that you pleaded guilty at an early stage in the proceeding; there is real utility in your plea, and importantly, you have spared the State the cost and inconvenience of having to conduct a trial on your behalf, and also all the witnesses have been spared the trauma of giving evidence. You have facilitated the course of justice. Your sentence will be discounted accordingly.
59 I am satisfied that you are genuinely remorseful, having regard to your full cooperation with the police, and appropriate admissions, and also the early stage at which your plea was entered.
60 You are still a relatively young man. You were 22 at the time of the offending, and are now 23. You are to be sentenced as a youthful offender, and rehabilitation is an important aspect of your sentence.
61 Having regard to your post-offence conduct, I consider that you do have insight into the link between drug use and the offending, and the need for you to undergo treatment, to deal with your drug use and also your major depression. Overall, with appropriate support and treatment, I consider that you do have good prospects for rehabilitation.
62 You participated in the sentencing conversation in this court, with the Elders. In the circumstances of your case, that is a factor that does go towards mitigating punishment. You demonstrated a positive attitude during the course of the conversation, and you accepted the comments made by Elders Auntie Jackie and Uncle Rod appropriately.
63 Your arrest following this offending has been a catalyst of sorts. You have actively sought out and obtained information about your indigenous heritage, and also about programs to address your drug use. You are keen to find out further information about your indigenous heritage, and you have also expressed the strong desire to attend the residential-based rehabilitation program that is conducted at Wulgunggo Ngalu, as part of a Community Correction Order.
64 Further, you have expressed a willingness to accept the support from the Wathaurong Co-operative in Geelong, and you discussed with Uncle Rod the various programs that are available. Overall, I consider that your participation does show insight and developing maturity.
65 I noted in 2014, you did successfully complete a Community Correction Order. I was disappointed that this offending occurred in the context of you having been released from prison, and being placed on an 18 month Community Correction Order, which was current at the time of the offending, and this offending breaches that order.
66 I did note, however, that you did not have appropriate supports in place when you were released, and that you were homeless and it was quickly a matter of you just falling into your past drug-using ways, which ultimately and inevitably lead to this further offending.
67 It is unfortunate that at the time of your release, that you did not have appropriate supports or stable accommodation, and that you quickly fell in with your drug-using peers, and relapsed into re-offending.
68 Currently, you are in the best position to utilise your expressed desire to change. You have ceased using drugs over the past seven months that you have been in custody. You have expressed a genuine interest and desire to address your drug problem, and you want to attend a rehabilitation program.
69 Your friend Stacy Stanford is willing to accommodate you temporarily upon your release, and you are waitlisted for public housing.
70 Ultimately, I have come to the conclusion that it is in both the interests of the community and your own personal interest that you be encouraged and supported to engage positively with Community Corrections, and also in your rehabilitation process in the community. That will enable you to maintain your abstinence from drugs long-term, and to enable you to return to a useful life, working in the community.
71 You are a person who has work skills; you are a qualified butcher and it should be possible for you in the future, if you do remain drug-free, to take up a working life.
72 I propose to impose a combination sentence; that is one that combines a term of imprisonment with a Community Correction Order. There is a need to foster your desire to remain drug free and crime free, and this affords you the best hope for rehabilitation, and provides the best in terms of community protection in the future, by releasing you on a controlled, well-structured, closely supervised program.
73 I have taken into consideration the principles articulated in R v Mills[2] in relation to youthful offending, and I consider that those principles have been enlivened. I have also taken into account the principles set out in R v Steelie Morgan.[3] I can consider that this is a case where I can temper justice with mercy. I am also further reminded of what was said by the Court of Appeal in the guideline sentencing judgment of Boulton v R,[4] where the Court of Appeal spoke about the negative impacts upon imprisonment and youth.
[2][1998] 4 VR 235.
[3][2010] VSCA 15.
[4][2014] VSCA 342.
74 Further, the Court of Appeal accepted that a Community Correction Order is intrinsically punitive and capable of deterring others and providing for specific deterrence. It is stated in that decision at paragraph [131], "a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment." So overall, having regard to the particular features of your case, I consider a combination sentence is the most appropriate sentence.
75 This is the longest period of you being held in custody on remand. I note the comments made by your counsel this morning. In the last four weeks, you have been held in protection with onerous conditions; you are only able to exercise one hour per day, and that is because of some threats that have been made against you whilst you have been in custody. I have taken that into account.
76 I will now sentence you. Mr Corey, if you could please stand.
77 The formal orders will be as follows:
78 On Charge 1, arson, you will convicted and sentenced to one year’s imprisonment, to be followed by a three year Community Correction Order, in the terms that I have already described to you. That is, there will be supervision, assessment and treatment, including testing for drug abuse, and participation in offence-related programs. Given your time already spent in custody, I do not consider unpaid community hours to be necessary. The sentence already reflects a punitive element, and the basis for your release on a Community Correction Order is to support you in your rehabilitation, and reformation in the community.
79 Charge 2, theft, you will be convicted and sentenced to one month's imprisonment.
80 Charge 3, negligently dealing with the proceeds of crime, convicted and sentenced to one month’s imprisonment.
81 In relation to the related summary charge, drive whilst disqualified, I noted this is your fourth occasion where an offence of this nature has been dealt with by the courts. You will be convicted and sentenced to 14 days’ imprisonment. In addition, any license held by you will be cancelled, and you will be disqualified from driving for a period of one year.
82 I note that you have spent 224 days in custody and I will make a declaration of pre-sentence detention of 224 days, and I direct that that be entered into the records of the court.
83 I make the following declaration pursuant to s6AAA, but for your plea of guilty, I would have imposed a term of three years' imprisonment, to serve two years’ imprisonment.
84 HER HONOUR: I think that covers everything. I do not think there were any ancillary orders. I will sign the Community Correction Order and Ms Hancock, if you could just get your client to sign that, and a copy will be made and provided to you.
85 MR TROTMAN: Your Honour, there was one particular order mentioned in the opening that was - - -
86 HER HONOUR: Sorry?
87 MR TROTMAN: A forensic sample order was mentioned in the opening.
88 HER HONOUR: Was there?
89 MR TROTMAN: I am not sure if that - - -
90 MS HANCOCK: No.
91 HER HONOUR: I do not think it was included in the final analysis. So the CCO's just in relation to the arson. Is that noted?
92 MS HANCOCK: Yes
93 HER HONOUR: Yes. All right. My associate will take a copy of that for you, Ms Hancock, and I will revise my sentencing remarks and provide them to you, so you can use them for the next plea. Thank you.
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