Director of Public Prosecutions v Croft
[2023] VCC 1459
•18 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-00507
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK CROFT |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2023 | |
DATE OF SENTENCE: | 18 August 2023 | |
CASE MAY BE CITED AS: | DPP v Croft | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1459 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated burglary; common assault; using a carriage service to harass; knowingly dealing with proceeds of crime; trafficking a drug of dependence; wilful damage; failure to store category A or B firearm in the manner provided for; failure to store cartridge ammunition in the manner provided for
Legislation Cited: Crimes Act 1958 (Vic) ss 77, 194(2), 320; Criminal Code Act 1995 (Cth) Schedule s 474.17; Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC(1); Summary Offences Act 1966 (Vic) s 9(1)(c); Firearms Act 1996 (Vic) ss 121(1), 121(1A)
Cases Cited:Filiz v The Queen [2014] VSCA 212; R v Mills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; R v Dixon (1975) 22 ACTR 13; DPP v Pain [2018] VSC 108
Sentence: Community corrections order of 30 months' duration; fine of $1,500
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr A. Patton | Vassis & Co |
HER HONOUR:
Introduction
Pleas and maximum penalties
1Jack Croft, you have pleaded guilty to the following offences:
(a) one charge of aggravated burglary, with a maximum penalty of 25 years' of imprisonment;[1]
(b) two charges of common assault, each with a maximum penalty of five years' imprisonment;[2]
(c) one charge of using a carriage service to harass, an offence which carries a maximum penalty of five years' imprisonment (I note, a Commonwealth charge);[3]
(d) one charge of knowingly dealing with proceeds of crime - maximum penalty of 15 years' imprisonment;[4]
(e) one charge of trafficking in a drug of dependence with a maximum penalty of 15 years' imprisonment.[5]
[1]Crimes Act 1958 (Vic) s 77 (‘Crimes Act’).
[2]Ibid s 320.
[3]Criminal Code Act 1995 (Cth) Schedule s 474.17.
[4]Crimes Act (n 1) s 194(2).
[5]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC(1).
2You also agreed to have uplifted, and pleaded guilty to, the following related summary offences:
(a) wilful damage (charge 4), with a maximum penalty of six months' imprisonment;[6]
(b) failure to store category A or B firearm in the manner provided for (charge 9), with a maximum penalty of 12 months' imprisonment or 60 penalty units;[7] and
(c) failure to store cartridge ammunition in the manner provided for (charge 10), again with a maximum penalty of 12 months' imprisonment or 60 penalty units.[8]
[6]Summary Offences Act 1966 (Vic) s 9(1)(c).
[7]Firearms Act 1996 (Vic) s 121(1).
[8]Ibid s 121(1A).
Facts giving rise to offending
3On your plea, a prosecution opening dated 20 July 2023 was tendered; it is attached to and forms part of my reasons. It forms the factual basis for this sentence and I will refer to parts of it in summary form here.
4In May 2022 you separated from your partner of two and a half years, KD. She was 24, you were 20.
5MK was a friend of Ms D; he was 19 at the time of these events.
6On 30 July 2022 both you and Ms D were separately in a pub in Swan Hill; she was with friends. She saw you near the bar, about 10 metres away. You made eye-contact: you said something to her which she could not hear.
7Between 9:58 pm and 2:30 am, you sent text messages to Ms D including the following:
'You're a fucking joke'
'Stop lying to me you lying slut'
'You're going out to get fucked have a look at yourself'
'Who are yoo with lol'
'lol you went home with someone'
'I'm coming now'
'So you've got someone there nice K you slut'
'Nice fucking cunt'
8These messages form the basis of charge 3 – the Commonwealth charge of using a carriage service to harass.
9The messages made Ms D anxious; she responded and asked you to leave her alone, and said that she would call the police if you went to her property.
10At around 12:30 am of the following day, 31 July 2022, Mr K picked up Ms D up from the hotel. They went to her house. At one stage they went for a drive because they were concerned you might go to the house.
11They returned approximately half an hour later and went to bed.
12At approximately 4:15 am, you did arrive at Ms D's house and banged on the front door. She awoke, got out of bed, and went to see who was there. You walked around to the back door and gained entry by kicking the back door in, causing damage to the door. Ms D was in the hallway at the time. This conduct forms the basis of Charge 1 – aggravated burglary, and the related summary offence, wilfully damaging property.
13The next events give rise to Charges 2 and 6, the common assaults.
14You charged at Ms D, who was screaming 'get out, get out, what are you doing'. She tried to push you; you shoved her into the wall and charged through to the bedroom. She kept screaming at you and followed you.
15Mr K got up and opened the bedroom door. You then punched him two or three times in the back of his head and neck, causing him to fall.
16Ms D attempted to stop you, and the two of you fell to the ground and wrestled briefly. Ms D was able to get back up. You also pushed Ms D approximately three times.
17Ms D pleaded with you to leave, and told you that she would call the police and her stepfather, who lived close by, but you continued and said, 'see you are a slut, just look at you'. Ms D then called her stepfather which caused you to leave. She called the police, who arrived soon after.
18Later in the morning of 31 July 2022, police found you at your grandparents' home in Swan Hill and you were arrested. Your iPhone was seized; you refused to provide your passcode.
19Police searched your grandparents' house for firearms and ammunition under the Family Violence Protection Act 2008. During that search, police found two rifles and some ammunition,[9] which were being stored in a wardrobe.
[9]Marlin 30-30 centrefire rifle and a Howa 223 centrefire rifle. The ammunition included two boxes of 30-30 WIN ammunition and five 223 calibre bullets.
20The storage of these items in this way forms the basis of the related summary offences of 'failing to store category A or B long arms'; and 'fail to store cartridge ammunition'.
21Police also found in a bedside drawer:
(a) two vials of cannabis oil;
(b) a Ziplock bag containing a white powder substance, believed to be cocaine;
(c) three Ziplock bags containing a white/pink crystal-like substance believed to be methylamphetamine;
(d) $570 in $50 and $20 notes;
(e) two sets of electronic scales; and
(f) 'deal bags', rubber bands and other drug accoutrement.
22Police also found a notebook, a page of which depicts what investigators believe to be a record of what is owed to you in relation to your sale of drugs, the combined amount owing totalling $14,665.00. These matters give rise to charge 5, trafficking in a drug dependence.
23Police were unable to locate a third firearm known to belong to you, a shotgun, or a key to your gun safe. When asked, you told police that the key was in your Ute, which was parked outside a friend's house in Swan Hill. Police were given consent to search the vehicle and although not able to locate the gun safe key, they did find a further $1,510.00 in cash in the centre console, along with other loose ammunition rounds. The money was seized, believed to be the proceeds of crime relating to trafficking (giving rise to charge 4).
24You participated in a police interview on the 31 July 2022. During the interview, you made a mixture of denials, claimed to have no memory for some events, and made partial admissions.
25After the interview, Police found the missing shotgun at your mother's house, under a bed, wrapped in a towel. This was also seized and taken back to the Swan Hill Police Station.
Victim impact
26On your plea hearing, a statement authored by Ms D was tendered – in it she described how what you did affected her. She has struggled with anxiety and sleeplessness, causing her to have to take time off work. She describes being crippled by her own thoughts. Her experience has led her to question whether to trust others in an intimate relationship again. I take the impact of what you did on Ms D into account in arriving at your sentence.
27Although Mr K did not file a victim impact statement, I infer, safely I think, that these events must have also been at the very least frightening and disturbing for him.
Prior criminal history
28You have no prior criminal history, nor any matters pending.
Nature and Gravity of the offending
29Your offending I note occurred in the context of a relationship breakdown and jealousy. You were warned against going to the house but went anyway.
30As the Court said in the case of Filiz v The Queen:
Offending of this nature is too often perpetrated by men whose responses to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences…[10]
[10]Filiz v The Queen [2014] VSCA 212 [21].
31You entered the house while holding the intent to assault one or both of those inside and you are charged separately with doing so. It was 4:15 am and you broke a door down to gain entry. You allowed yourself to give way to your feelings of jealousy and rejection and compounded those states with a combination of illicit substances.
32Your offending was very serious, though I accept, without applying the proposition in mitigation, that you were drug-addled and disorganised in your thinking at the time – and that your conduct was not thoughtful or premeditated.
33Your offending in relation to the firearms was irresponsible but, I also accept, the product of complacency and not menace.
34In relation to the drug trafficking, you are charged in relation to a single date and the quantity is small – the prosecution conceded that the trafficking is an example of an unsophisticated arrangement. There is no evidence of gross enrichment and I accept that you engaged in trafficking to support your own burgeoning habit.
35Subjective matters that I have had regard to in assessing your moral culpability are these. At the time you committed the offences you were 20 years old and had experienced your first relationship breakdown. Your distress, immaturity, compromised mental health and drug use combined and together became the engine of your conduct this night.
36Being in a distressed, intoxicated and rejected state does not excuse, in any way, what you did. It does however suggest, in the absence of any history of similar behaviour before or after, that your conduct may be seen as 'situational' and not arising from the fabric of your character. I will return to the way you have conducted yourself since these events when I come to consider your prospects of rehabilitation.
Personal Circumstances
37You were born in 2001 and were aged 20 years old at the time of the offending.
38You are the only child of your parents' relationship. Your parents separated when you were approximately two years old. Your mother re-partnered, from which relationship you have two younger half-siblings. You report a positive relationship with your mother and your stepfather, but a more distant relationship with your birth father. Apparently the only disruption resulting from your parents' separation was a three month estrangement from your mother when you were about 14.
39You grew up and attended school in Swan Hill. You found it hard to concentrate on academic tasks, though you were largely able to stay in step with the curriculum. There was some consideration (a provisional diagnosis is later arrived at) about your suffering from ADHD.
40You left school after completing Year 10. You describe the year or so preceding this as one of poor attendance, and it was around this time that you started regular consumption of illicit substances.
41Since leaving school, you have managed to keep yourself constructively and consistently employed. You first worked a series of jobs as an agricultural worker, moving around the Riverina area. You worked for Goulburn Murray Water, from which you recently resigned to work full time in a firewood supply company.
42Your first long term relationship was with the victim in this matter. You met when you were aged 17 and she 21 and you lived together for some time. You describe yourself as taken by surprise when she decided to end the relationship, and as experiencing an emotional and psychological spiral as a result, accompanied by increased substance abuse.
43You have been on bail since your arrest on 31 July 2022.
Matters in mitigation
Pleas of guilty
44You pleaded guilty, and did so early, without cross-examining either of your victims, or any other witnesses. At any time, this feature of your plea would be significantly mitigating of your sentence; but at this time, when , even though the worst of the pandemic is over, the lengthy Court lists still impede the administration of justice and your plea commands a further and palpable discount. I make it clear here that but for this latter feature your sentence would have been significantly more onerous.
45I note that you have complied with both bail orders and intervention orders since your being charged.
Remorse
46Since your offending, you have consistently expressed your shame about the way you behaved, and your empathy for your victims when in discussion about your offending. Such statements are not unimportant, however it is what you have done since your being charged which establishes real remorse, being remorse in action.
47Before I turn to the programs you have undertaken on bail, I will first address the content of a psychological report tendered on your plea, authored by Ms Carla Lechner. I take that report into account as general background and note Ms Lechner's conclusion that you present as a low risk of future offending. No formal legal submissions arose on the basis of that material ultimately, but I take it into account in a general way.
48I will turn now to the steps you have taken towards your rehabilitation while on bail. First, you have engaged in a program of mental health treatment: Tracey Hanns – a social worker/counsellor – provided a letter confirming your attendance at 10 appointments from 16 September 2022. You had presented to her suffering symptoms of anxiety and distress. She notes that you have displayed 'commitment to the counselling process and responded well to treatment'. When that service referred you to other programs you sought them out and persisted. A letter from the convenor of the Sunraysia Community Health Services' Men's Behaviour Change Program confirmed your participation in 20 out of 20 sessions to complete that program; each session of a duration of two hours.[11]
[11]Letter of Bianca Metcalf dated 21 June 2023.
49A letter was also provided by George Mudford, of the Mallee Alcohol and Drug service, setting out that since 6 March this year you have 'actively engaged and participated in counselling treatment and support from that service and that you are currently completing extended counselling'.[12]
[12]Letter of George Mudford dated 3 July 2023.
50Your enduring commitment to counselling, alcohol and drug treatment and understanding the violence you found yourself capable of is impressive. Whatever your motivation for undertaking these treatment programs, you have demonstrated persistence, humility and acceptance of responsibility for your own failings, as well as an ability to accept treatment over time.
Youth
51You are now 21 years old and you were 20 at the time. Your case attracts therefore the principles articulated in the cases of R v Mills[13] and Azzopardi v R.[14] First, according to these principles, I accept that your youth made you more prone to acting on ill-considered and rash decisions, and made you less able to appreciate the nature and seriousness of your conduct.[15]
[13][1998] 4 VR 235, 241.
[14](2011) 35 VR 43 (‘Azzopardi’).
[15]Ibid [34].
52Further, your rehabilitation is in the community's interest and your stage of development (in combination with the evidence of the work already done in this regard) gives me good grounds to conclude your rehabilitation is likely and well supported.
53In many respects, your conduct calls for your immediate imprisonment. However, I am also aware that incarceration in an adult prison, the only option open to me, will more likely impair than improve your recovery if I were to commit you to that, what has been described as an 'unnatural and isolated' environment.[16]
[16]R v Dixon (1975) 22 ACTR 13, 19-20.
54In short, your youth takes primacy in this sentence over general deterrence in a way that it would not if you were older.[17] I do not find that this case falls into a category where that principle is displaced.
[17]Azzopardi (n 14) [37].
Prospects of rehabilitation
55The prosecution submitted, and I accept, that you have very good prospects for rehabilitation. In addition to the steps taken while on bail you have a good history of employment, and character references tendered on your behalf suggest you are well supported by friends and by family and that you are regarded with affection and respect in both a family context and in the workplace.
Current sentencing practices
56I have had regard to a range of other cases on similar indictments and considered this general sentencing landscape; no case is exactly like yours and my task is to do individual justice.
Purposes of sentence
57This sentence must punish you for what you did, and through this sentence the Court denounces your conduct and makes it clear that disappointed outraged ex-partners who break into the homes of their former spouses will be dealt with sternly. I find the need for specific deterrence is, however, reduced in your circumstances. The role for general deterrence is significant but, in this case, must soften to allow the principles for sentencing young offenders to take effect.
Totality
58I am conscious of the need to view each charge separately noting that the wilful damage charge and entry on the aggravated burglary charge are constituted by the same events; the common assaults are to be regarded separately from the aggravated burglary which is complete upon entry.
Statutory structures
59I note that charge 3, using a carriage service to harass, attracts the operation of the Commonwealth sentencing regime and imposing sentence on this charge I have had regard to the matters in s 16A of the Crimes Act (Cth) and I am obliged to sentence separately for this charge. I will make an order on that charge that is of 'a severity appropriate in all the circumstances'.
Submissions of the Parties
60The prosecution in this case made a range of fair concessions including that the role for specific deterrence and community protection have a lesser role to play in the construction of the sentence.
Consideration
61On this plea, the principles in particular tension, that I have found difficult to resolve, is the role for general deterrence for crimes committed by outraged former spouses, and, on the other hand, youth and the community's interest in the long term rehabilitation of young people.
62In the end, authority tells me that, unless the gravity of the offending rises to a point where youth 'takes a back seat' (not said to be the case here), youth and the rehabilitation aims of the sentence must prevail.
Disposition
63So, Mr Croft, the following is a statement of your sentence. On each of the charges 1, 2 ,4, 5 and 6, and the three related summary offences you are convicted and sentenced to a Community Correction Order of 30 months' duration. I make the same order in relation to each of the offences.
64On charge 3, using a carriage service to harass you are convicted and fined a total of $1,500.
Plea benefit – s 6AAA
65I state here that but for your plea of guilty and pursuant to s 6AAA of the Sentencing Act, I would have imposed a sentence of two years and four months' imprisonment, with a non-parole period of 18 months.
Ancillary Orders
66I will return in a moment to the contested ancillary orders, but I make the orders for disposal of the drugs and for the forfeiture of the money, the cash.
67The application for forfeiture of the firearms connected with the firearms charges was opposed by your counsel.
Forfeiture of firearms
68By virtue of the findings of guilt on the Firearms Act (‘the Act’) charges, you are now a prohibited person under the Act. The prosecution has applied for forfeiture of the firearms pursuant to s 151 of the Act. I have a discretion to exercise pursuant to the terms of s 151: on a finding that you are a prohibited person under the Act, I may order forfeiture of the firearms involved.
69I have considered the submissions of the parties and weighed the following matters in the exercise of that discretion:[18]
(a) the fact that you were properly licenced to own the firearms;
(b) the firearms were properly registered;
(c) a gun safe was properly installed at Ms D's address;
(d) there was no evidence that the firearms were used in connection with the offending in relation to either the aggravated burglary or the trafficking;
(e) the submission that your failure to store them properly came about as the 'result of significant emotional and psychological tumult';
(f) your relatively recent history of violent offending against a former intimate partner; and
(g) your history of combining 'emotional tumult' with illicit substance abuse and gun ownership.
[18] DPP v Pain [2018] VSC 108.
70I have also had regard to the purposes of the Firearms Act as set out in s 1 of the Act:
The purposes of this act are: to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace by…
(…)
providing for strict control on the possession, carriage, use, acquisition, disposal and storage of firearms.
71Balancing the matters before me the best I can, I exercise the discretion to order that the items identified on the draft forfeiture order are forfeited.
CCO Conditions
72I am now going to turn to setting out the conditions of the Community Correction Order, which I note will be for the duration of 30 months.
Once I have read through the conditions I will allow you an opportunity to speak to your counsel and I will be asking you to both confirm your consent and sign the orders.
i.You will be first subject to a standard conditions of a Community Correction Order. That means that you must not commit any other offences that are punishable by imprisonment during the 30 month period. Let me be clear about this, Mr Croft: if you do, you will be brought back to court before me and resentenced for the offences; and absent very powerful reasons, you should expect that that would involve your imprisonment.
ii.You must report to the Swan Hill Community Corrections Service within two days of today.
iii.You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
iv.It is a term of all Community Correction Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission and that is for the entire 30 months.
Special conditions
v.Turning now to special conditions that I will attach to the order, you will be required to complete programs to further address your drug use and alcohol use.
vi.You must submit to supervision as directed.
vii.You must submit to mental health assessment and treatment.
viii.I require you to perform 150 hours of unpaid community work over the term of the order, but pursuant to s 48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours. So while I am requiring you to do unpaid work, if you are attending for treatment, or participation in treatment, that will also contribute to those hours.
ix.I also require you to participate in judicial monitoring. That means you have to come back to court, by video, in six months' time, and at that point, I will receive a report as to your compliance and engagement with your order.
73Mr Croft, let me make this clear: the order is lengthy and onerous. It is intended to be so. It will infringe on your liberty and your autonomy. It will be inconvenient and demanding of your time and attention. You will have to comply with directions that displace other life commitments and plans; you will be supervised and the subject of reporting. In short, it will be punitive, invasive and enduring, and that is the point. It is the alternative to your serving time in adult custody and that fact should be remembered by you during the duration of the order.
74I will list your case for appearance by video link on 18 February 2024 – sorry, on 16 February, so that is 16, not 18, 16 February 2024 for a judicial monitoring hearing and at that hearing, I'll have a report of your progress on the order. Before I give you a moment to speak to Mr Patton, counsel, can I just confirm, have I missed an orders? Mr Brown?
75MR BROWN: I don't believe so, Your Honour.
76HER HONOUR: All right. Mr Patton?
77MR PATTON: No, Your Honour.
78HER HONOUR: All right. Have a word to your client and then arrangements will be made for him to see and sign the order from his location.
79MR PATTON: Thank you, Your Honour.
80HER HONOUR: I'll come back in a moment.
81MR PATTON: Thank you for the time, Your Honour. Mr Croft continues to consent to the making of the CCO.
82HER HONOUR: All right and he's understood what he's obliged to do on the order?
83MR PATTON: Yes Your Honour - - -
84HER HONOUR: Good.
85MR PATTON: - - - and I'll have a further phone conversation with him after the conclusion of the hearing.
86HER HONOUR: All right, good. In that case, Mr Croft, that completes your case and you'll be in court again for judicial monitoring on 16 February 2024. Video link is fine, Mr Patton - - -
87MR PATTON: Thank you, Your Honour.
88HER HONOUR: - - - as long as it's of a high quality.
89MR PATTON: Yes Your Honour.
90HER HONOUR: All right, good, thank you, counsel.
91MR PATTON: As Your Honour pleases.
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