Director of Public Prosecutions v Corlett

[2022] VCC 839

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02050

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE CORLETT

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2022, 24 May 2022 and 9 June 2022
DATE OF SENTENCE:	9 June 2022
CASE MAY BE CITED AS:	DPP v Corlett
MEDIUM NEUTRAL CITATION:	[2022] VCC 839

REASONS FOR SENTENCE

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Subject:             CRIMINAL LAW – Sentence

Catchwords:     Aggravated burglary – Conduct endangering persons – Make threat to kill – Common assault – Damaging property – Principles applicable to youthful offenders discussed – Family Violence – Assaulted a former partner – COVID times -

Cases Cited:     Pasinis v The Queen [2014] VSCA 97; Kalala v R [2017] VSCA 223; Filiz v the Queen [2014] VSCA 212; DPP v Meyers [2014] VSCA 314; Azzopardi v The Queen [2011] VSCA 372.

Sentence:         Three years and four months with a minimum term fixed at one year and six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Ms M. Heley	Rolfe Criminal Law

HIS HONOUR:

1Jake Corlett, on 24 May 2022, I granted your application for a sentence indication.  You then pleaded guilty on arraignment to five charges being an aggravated burglary, conduct endangering persons, making a threat to kill, a common law assault and criminal damage.  You have also pleaded guilty to two summary offences being breaches of the Bail Act.  All the offences arose from your violent and cowardly behaviour on 2 May 2021, directed primarily at your then young ex-partner.

2On that night, you and the victim were communicating by text.  She invited you to her house where she lived with her mother.  However, as you were on your way, the tone of your text changed and as a consequence, the victim no longer wanted you to come to her house.  She told you this in text messages in unambiguous terms.  Rather than accepting this, you angrily went to her house in the dead of night, you got there at about 4:30am.

3You banged on her bedroom window, demanding she let you in.  You threatened to smash the window if she did not open it.  The victim said that she was not going to open the window and that you should go home.  Again, you had an opportunity to do the right thing and go home and let time cool your anger down.  The victim's mother was also awoken and told you to go home and that she was going to call the police.  You responded by threatening to have associates run through the house.  You continued to hit and then kick the window until you smashed it.  You then crawled in saying: 'I'm going to run through the house'.

4You shut the bedroom door to isolate the victim from her mother.  Her mother called the police and indeed, tried to call your father and then used her phone to record what you were saying.  That recording revealed your aggressive and entitled attitude.  Beyond your violent words, you then grabbed the victim by her hair and dragged her across the room.  You punched and kicked her and were telling her that you were going to kill her.  Then in a frightening escalation, you then grabbed the victim by her throat, squeezing it until she could not breathe.  She feared she was going to die.  The police arrived and arrested you still in the house.

5In your interview with police you denied or minimalised your violent conduct.  Thereafter, you were remanded.  While in custody, you pleaded guilty to an earlier violent offending and received a sentence of imprisonment.  Thus you have a part of your time in custody, since 2 May 2021, that is available as a pre-sentence detention to be declared as part of this sentence, that is, 215 days as I have said, but the whole time you have spent in custody is 403 days.  I will return to this matter shortly.

6As is plain, violence of this kind, to this victim, is very serious offending.  The courts and the community are tired of violent men subjecting women to terrifying ordeals.  Although I say, the courts and the community are tired of such behaviour, I also reiterate that the response of the court remains firm, so as to ensure proper punishment is imposed, usually involving imprisonment.  A scourge of violence directed at women by ex-partners is all too prevalent and must be denounced.  The punishment must operate to deter other men from embarking on similar cowardly attacks. 

7In 2014, the Court of Appeal in Victoria said in the now often quoted case of Pasinis v The Queen,[1] that historically perpetrators of family violence were rarely prosecuted, even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence.  The court went onto say that specific and general deterrence are very important factors in sentencing men who assault their partners.

[1]Pasinis v The Queen [2014] VSCA 97.

8Later in 2017, the Court of Appeal comprehensively analysed this topic in the matter of Kalala v R.[2]  Again there was emphasis given to the importance of general deterrence and denunciation.  In that case, the Court of Appeal went onto say:

It is well recognised that the prevalence of a particular type of crime may be a relevant sentencing consideration. Trial courts of this state are imposing sentences for family violence with increasing frequency.  This court has repeatedly emphasised the need to condemn family violence, in line with community expectations.[3]

[2]Kalala v R [2017] VSCA 223.

[3] Ibid, [55].

9In another Court of Appeal case of Filiz v the Queen,[4] the court acknowledged:

The shameful truth that family violence is the leading cause of illness, disability and death among Victorian women aged between 15 and 44.[5] 

[4]Filiz v the Queen [2014] VSCA 212.

[5] Ibid, [23].

10Violence involving choking a victim is all too prevalent and it is a frightening and dangerous form of exerting power over a woman.  The case that I quoted of Filiz,[6] was of course an example of violence towards an ex-partner, in a setting of a late night aggravated burglary.  So too was the well-known case of the Director of Public Prosecutions v Meyer.[7]  That important case established that the gravity of aggravated burglaries must be met by appropriate sentences.

[6] Ibid.

[7]DPP v Meyers [2014] VSCA 314.

11In Meyer,[8] the court considered the factors that make an aggravated burglary serious, such as the violence of the breaking into the premises, the intent of the perpetrator at the point of breaking in, the timing, especially if it is in the dead of night and whether the victim was someone who is frightened of the offender.  These are relevant factors here.  The absence of other aggravating factors such as the use of weapons or an attack in company or a break-in in company with others, do not operate to mitigate this offending.

[8] Ibid.

12Thus on any measure, this aggravated burglary is a serious example of that crime and given what the victim said by text messages and directly to you at the window, your moral culpability is high, as you had chances to simply go home.  The attack on the victim, especially the choking of her is also without doubt, serious criminality that must be condemned and punished adequately.

13As I have made clear, denunciation and deterrence are primary sentencing purposes.  That said, your rehabilitation is also very important given that you are still a young man.  You were 21 at the time of your crimes and now 22.  Your youth requires me to consider carefully how you can be reclaimed.  Your reform is in the best interests of the community.  However, you are not a young first offender having prior and subsequent criminal convictions for violence, but as the Court of Appeal in Azzopardi made clear,[9] even with a lengthy prior history, youth remains an important sentencing consideration.  Youth explains impulsivity and poor decision-making. 

[9]Azzopardi v The Queen [2011] VSCA 372.

14Though, as I have said, the victim spoke to you either by word or text, that should have caused you to stop.  I do take into account your youth here and your other mental health problems, give rise to your impulsivity and your lower capacity to think through consequences.  So your youth means I can moderate the full weight of general deterrence, so as to ensure a merciful sentence and one that gives you an opportunity to quickly get back on track.

15These matters operate to mitigate or moderate, but do so in a balanced way.  In the end, the gravity of your offending remains and means there must be punishment and deterrence in the sentence that I impose.  As to your personal circumstances, your upbringing was in a supportive family.  Your parents and your sister remain supportive and will be there for you, on your release.  I will say more of this support shortly. 

16Despite your solid family circumstances, you fell too easily into drug use and self-indulgent behaviour.  You have struggled with self-esteem and scourge of anxiety which bedevils many young people.  You engage in destructive levels of binge drinking from an early age, likewise you took up drug use.  You became suspicious at times to the point of paranoia when under the influence of methylamphetamines.  You did commence an apprenticeship in building and construction – that fell away due to your drug use.  After a period of time unemployed, your father arranged a job with the business where he was a manager, but again, you were not able, it seems, to sustain the discipline of that work due to drug use and the like.

17Your parents remain supportive, despite your offending and drug use.  I think I have it accurately that they have, through the COVID period, relocated to Queensland, but they do remain supportive.  You have a very supportive older sister in Victoria.  She wrote directly to the court.  Her letter is insightful and helpful.  She urged I adopt a more therapeutic approach, rather than a punitive one.  I have endeavoured to ensure that there is that balance, but a balance it must be.

18I give weight to her opinion that you have woken up to yourself and benefit, as it were, by your time in custody.  She speaks of thirteen months in custody making a big difference to your outlook.  Of course you have been in gaol for that length of time, but not all of it can be declared as part of the sentence that I impose.  Another judicial officer's sentence of imprisonment has absorbed six months of that time.  I do not ignore the whole period or the totality of your time in custody, but as I say, not all of that can be deducted or seen as part of the sentence that I will shortly impose.

19Your counsel sought at the sentence indication a sentence of imprisonment of a time that you had already served on remand, followed by a community corrections order.  Prosecution contended the offending was too serious for such a sentence and a head sentence and non-parole period ought be the sentence imposed, especially where you were on bail at the time for other violent criminal conduct and on a community corrections order for earlier violent offending.  These matters aggravated your criminality, but I do not - I pause to say I do not double punish you because you are facing summary offences for committing an indictable crime while on bail.

20But in the end, having balanced all matters for and against you, I concluded a term of imprisonment, with an opportunity for parole was the most appropriate and just sentence.  Relative to the head sentence, your opportunity for parole will be sooner than is most often the case.  That said, there are no fixed formulas.  The important factor here in the setting of a low minimum term is your youth and what seems to be your maturing outlook of late, as described by your sister.

21The minimum term is what justice requires that you serve in custody.  I also make clear that, in fixing the head sentence, I am well mindful you may have to do each day of that sentence.  In fixing the sentence, I have factored in the need for a greater benefit to be accorded to you for your plea of guilty which has come in COVID times.  Your plea of guilty is an expression of your remorse, as seen by your sister and described in her letter, fortifying my conclusion that you are remorseful for what you did.

22This, that is the benefit to you of your plea of guilty and your remorse, gives me greater confidence that you have woken up to yourself while in custody.  You realise you are wasting the best years of your life and that you must put violence of this kind behind you, of course you must put drug use behind you as that is the commencement of a cycle of offending and behaviour that will get you into trouble.  Gaol has been onerous during the pandemic and I have factored that into the sentencing equation.

23While in gaol, you have done all you could on remand with the rehabilitation programs as they have become available.  All that is to your credit.  I indicated the sentence that I would impose would be no more than, or I could not impose a sentence more severe than a sentence of three years and seven months, with a minimum term of one year and ten months.  I have reflected upon that sentence and upon what I have learnt about you and your time in prison and I will impose a sentence that is not more severe of course, but indeed is less severe, but not by much in all the circumstances.

24Your offending is still grave and must be met by imprisonment as hard as that always is.  The sentence will be three years and four months, with a minimum term fixed at one year and six months.  That will be achieved by the following.  For the crime of aggravated burglary, you are sentenced to two years.  For the crime of conduct endangering person, you are sentenced to 21 months imprisonment.  The crime of threat to kill, you are sentenced to 10 months imprisonment.  The common law assault, you are sentenced to 14 months imprisonment and for the criminal damage, four months imprisonment.  For the summary bail offences as an aggregate, you are sentenced to 14 days imprisonment.

25The following orders for cumulation operate, nine months of the sentence, the conduct endangering person.  Three months of the sentence imposed on the threat to kill and four months on the sentence imposed for the common law assault.  The sentence imposed for the criminal damage and the summary offences are concurrent.  If my mathematics is correct, that gives a sentence of three years and four months and I fix a non-parole period of one year and six months.  I declare - well the figure of 215 days on remand has been reckoned as pre-sentence detention.  I now declare that 215 days is part of the sentence that I have just imposed.  I will ensure that that declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have already served 215 days of the sentence I have just imposed.

26Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and nine months, with a non-parole period of three years.  Anything further required?

27MS PAGANIS:  Nothing from the Crown, Your Honour, thank you.

28MS HELEY:  No thank you, Your Honour.

29HIS HONOUR:  So is the mathematics correct, to counsel and my own staff?

30MS PAGANIS:  Yes, Your Honour, if you'd just give me one moment?

31HIS HONOUR:  Yes of course.  Hopefully it should be 24 months then nine months, three months and four months.  They are cumulative.  My staff are saying it is correct.

32MS PAGANIS:  Yes, that is so, Your Honour.  Thank you.

33HIS HONOUR:  Thank you.  If there's nothing further, I thank counsel for their assistance.  Ms Heley, do you want to speak to your client on this link?

34MS HELEY:  Please, Your Honour.

35HIS HONOUR:  And to that end, I'll go off the link and allow you to do that.  My staff will organise that, I think it's just for you, not for others, but they'll work that out, all right?

36MS PAGANIS:  As Your Honour pleases.

37HIS HONOUR:  Thank you very much for your assistance.

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