Director of Public Prosecutions v Crole
[2012] VCC 1103
•3 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00642
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COREY CROLE |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Crole | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1103 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | |
| For the Accused | Ms G. Morgan |
HIS HONOUR:
1 Corey Jackson Crole, you are to be sentenced for one charge of aggravated burglary and one charge of criminal damage. The maximum sentences are, respectively, 25 years' imprisonment and ten years' imprisonment.
2 You pleaded guilty before me on 28 June 2012.
3 When interviewed by police on 14 January 2012 you made full admissions. The committal went by hand-up brief on 24 April, after which you entered a plea of guilty. The matter was quickly listed for plea in this court, a little over five months after your offending. You receive the benefit of your plea of guilty and a high level of cooperation, both from an early stage. I find you to be genuinely remorseful.
4 At your plea hearing, which ran on 28 June and 30 July, Ms Hogan for the Crown tendered a written summary of opening. Ms Morgan, for you, tendered a large number of work and character references. On 30 July she called you to give evidence before me. On 28 June I requested a pre-sentence report as to your suitability for a Community Corrections Order. I have received the report of Joanne Brown of Community Corrections, dated 23 July. You have been found suitable. I have since also received and considered the written submissions of both counsel. Those submissions refer to a number of Court of Appeal authorities.
5 The circumstances of your offending are described in the tendered Crown summary, which is Exhibit A. My own summary may therefore be shorter.
6 You committed these offences on 14 January 2012. You had turned 18 years some six weeks earlier, on 30 November 2011. Co-offenders were Chantelle Peterson and Anthony Stephens. As I understand it, they are of broadly similar age; but are young enough to have had their matters heard in the Children's Court.
7 Victims of the offending were six young people who, on that night, were staying at Wattle Tree Road, Bunyip. They were aged 19 to 13 years. One of them is named Dylan Yates. He was aged 19 years. Members of your group had various grievances with Yates. As to yourself, you told police in your interview that he had threatened you, your younger sisters and your partner. She is Deannna Wallace and was at that time heavily pregnant. You had been drinking and I find that you were intoxicated.
8 During the night there had been phone contact between Chantelle Peterson and the young people at Wattle Tree Road. Ultimately at about 2.30 am you, Peterson, Stephens and another young person named Perkins went to that premises looking for Yates. You were refused entry. You kicked and forced the door open. You, Peterson and Stephens entered, yelling for Yates to come outside and threatening to assault him. He ran to the bathroom. The door to that was kicked and damaged. Yates and another young person, Ashley Hollis, rang the police. At least one 16 year old girl named Teaghan Chick ran from the house. Ashley Hollis also left for a time. A 13 year old, Thomas Whittington, was punched and slapped by other offenders. You are not charged with that.
9 Unsurprisingly, all of the victims were very frightened. Ultimately your group left the house. Some were arrested at the scene. You had left but were arrested later that day. As I have earlier stated, you were cooperative.
10 The criminal damage charge entails damage caused to both front and bathroom doors. I accept that you did not physically assault any victim.
11 Ms Morgan took me to aspects of victims' statements that, she argued, tended to show that you played some role in bringing the matter to an end. Ashley Hollis states as follows, as to a point in time after she had left the house and rang the police. "I spoke to Corey Crole at the road. Corey came with the others that broke the door. I am friends with Corey. Corey went and got them out of the house. By them I mean Chantelle, Anthony and some other guy called Jeff". Jade Peters states, likely as to an earlier point in time, "I was scared so I ran out of the house and crossed the road to the paddocks with Corey Crole. Corey was an offender at first but I know him and he's a friend so he ran with me. About 10 to 20 minutes later I came back and people were yelling out to Thomas. Thomas yelled back. It seemed to settle down a bit".
12 I find on the probabilities that you did stop and assist in those ways. This was not challenged by the Crown. It must be said that the offences had been committed and considerable harm already done.
13 You are still aged 18 and live with your mother, her partner and your three younger sisters on Phillip Island. Just prior to the offending you were living at Warragul with your grandparents. You have no criminal history. Your partner, Deanna Wallace, has given birth to your child, who is now aged about four months. Deanna Wallace lives with her mother and your daughter in Warragul. However, on alternate weeks you stay there and she and your daughter come to stay with you and your family at Phillip Island. I accept that you have a stable and supportive relationship. You have a strong relationship with your family.
14 Your mother and natural father separated when you were about three years. After leaving school in Warragul at 16, after Year 10, you have been consistently employed. You worked at Subway and then began an apprenticeship in carpentry. After 18 months that ended; I was told, and accept, for reasons not related to you. That was in mid-2011. You worked as a labourer before moving to Phillip Island. Since then you have worked sorting scrap and with a concreting company. In May you were given the opportunity of working for a large arboriculture business on Phillip Island and presently see your future working life and career in that industry. It is an impressive work record for a fundamentally unqualified 18 year old. For example, you were able to save, at 17 to 18 years, $6000 whilst working as a labourer during your partner's pregnancy in the latter half of 2011. That you have a strong work ethic, a mature dependability and a promising future with your present employer is supported by his letter tendered to the court.
15 Aggravated burglary particularly is a serious offence, attracting a maximum sentence of 25 years' imprisonment, and the circumstances of your offending include a number of the common serious features. Several vulnerable young people were frightened within and denied the security of their home. There was damage caused. Your offending was in the company of others and in the early hours of the morning, which added significantly, no doubt, to the fear caused. Such offending is seen to be prevalent or at least very far from isolated. In such cases the sentencing considerations of deterrence, particularly here general deterrence, and condemnation of what you have done are important. There is the consideration of proportionate punishment. You were intoxicated, which is not usually a significant mitigating factor in cases of offending such as this. In saying that I should and do bear in mind your youth combined with otherwise good character. I find your moral culpability to an extent reduced because of effect of alcohol but still relevant.
16
Objectively viewed, this offending would in most cases attract a custodial sentence. However, there are also strong mitigating factors. They include the following matters. (1) Your plea of guilty and high level of cooperation.
(2) I find you to be genuinely remorseful. (3) You are a youthful offender and have very good prospects for rehabilitation. (4) There are also some mitigating or at least less adverse features in the circumstances of offending. There were no weapons; no one was significantly injured; and I accept that, albeit belatedly, you desisted and offered some assistance to victims.
17 Ms Morgan submitted that the appropriate sentence was a Community Corrections Order. Ms Hogan, for the Crown, submitted that, bearing in mind your youth, family support and remorse, such a sentence is within a proper range.
18 The difficult and contested issue is whether I should impose a conviction. I recognise that such a course requires exceptional circumstances. Further, the seriousness of the offence of aggravated burglary, the adverse features of these circumstances and the associated need to address, particularly, general deterrence speak against a non-conviction order.
19 However, in my view, there are a number of powerful, positive factors bearing on the issue. (1) I find the evidence of your otherwise good character and prospects for rehabilitation particularly strong. (2) You have responded well to the responsibilities of fatherhood and also to your commission of these offences. You no longer drink outside the home and do so very moderately. As I have said, I find your work ethic and record, in one as young and without the assistance of high educational qualification, to be impressive. You have earned a good opportunity at your present employment. (4) You have developed, again at a young age, a sound and supportive relationship with your partner. That is supported by both families. (5) The strong evidence of your personal qualities, to some extent, assist a more sympathetic assessment of the circumstances of offending. I say this without detracting from my earlier description of the seriousness of it. The tendered character reference material, particularly the letters of your mother, your partner and, perhaps significantly, her mother, raises that there were problems in your life during that period. You had suffered the disappointment of losing your apprenticeship. Your mother had been diagnosed with cancer. I add that you were confronted, at 17, with the responsibility of impending fatherhood. It is apparent that at least on this night you were not drinking responsibly. Ms Morgan made reference to past binge drinking. I bear in mind your youth; all participants were very young. There is room to consider the particular effect of immature ill judgment in a context of the again immature dynamics between young people who know and have had difficulties with each other. As stated earlier, I am also persuaded that you acted in some way to end the matter. (6) The future is hard to predict. However, I see a non-conviction order to be a likely assistance to your rehabilitation and establishment of your future life. (7) I have emphasised your youth. In fact you were a very short time, about six weeks, beyond the jurisdiction of the Children's Court. This was discussed with counsel. Co-offenders have been dealt with there, more leniently than you. One speculates, and this was not challenged, that you would have received a non-conviction order in that jurisdiction. The matter of parity has been raised. Consistent with authority, the principle of parity is not readily applicable in this situation. The Children's Court entails a markedly different sentencing regime and sentencing considerations. I do not apply the principle of parity. The situation, however, does emphasise your youth. You are a particularly young person to be before this court.
20 It is the combination of these matters that has persuaded me. You present to me as a young person with real capacity, without the advantages of some others, to achieve a successful personal and working life, one of benefit to the community. Ultimately, although (as I have attempted to say) without disregarding the serious adverse factors, I have decided that this is a case in which there is room to find that you should be encouraged in that.
21 I shall not impose a conviction.
22 The order I make has a punitive aspect. There will be a substantial component of unpaid community work. Although balanced against those matters which have persuaded me to a non-conviction order, that punishment may also be seen to address the sentencing purpose of deterrence.
23 I sentence you as follows. On one charge of aggravated burglary and one charge of criminal damage I impose a Community Corrections Order for two years. The usual terms apply and I impose the special conditions of unpaid community work of 400 hours over a period of two years, supervision under s.48E of the Act, assessment, treatment and rehabilitation for alcohol abuse under s.48D(3)(b) of the Act and, under s.48D(3)(f) relating to offence specific programs, anger management counselling. All of those programs are to be undergone under the direction and according to the directions of Community Corrections.
24 We will need a little time to prepare that document. I make clear that I do not impose a conviction related to that order. I am obliged to state, under s.6AAA, what I would have imposed had you not pleaded guilty. That is never an easy task and is not in this case. I have seen your plea of guilty and thereby expression of remorse to be important in this matter and it is really inextricably related to a number, of not all, of the other favourable matters. Doing the best I can, had you not pleaded guilty and thereby had you come to be sentenced by me after a trial and verdict of guilty, I would have imposed a sentence of imprisonment of six months but wholly suspended that. So you would have been at risk of going to gaol if you had not have kept to that order, if you had not have pleaded guilty.
25 There was an application, was there, for a forensic sample? Have I dealt with that?
26 MS HOGAN: You have, Your Honour. On the last occasion you indicated that you would not make that order.
27 HIS HONOUR: Yes. I left open the opportunity for further submissions, as I recollect.
28 MS HOGAN: Just in relation to 6AAA, Your Honour, a wholly suspended sentence is not open on aggravated burglary.
29 HIS HONOUR: I see.
30 MS HOGAN: But I am not sure if Your Honour is required, in any event, to make a declaration under 6AAA for a Community Corrections Order.
31 HIS HONOUR: Why would I not be? That just shows the difficulty of it all, does it not? All right.
32 MS HOGAN: I will just check that one.
33 HIS HONOUR: It would not have been a matter of finding exceptional circumstances to suspend the sentence. It is simply not allowed to me for such an offence.
34 MS HOGAN: That is right.
35 HIS HONOUR: You think that I may not need to make the indication?
36 MS HOGAN: Yes. Section 6AAA says, "In sentencing the offender and a court imposes a less severe sentence than it would otherwise have imposed, because the offender pleaded guilty to the offence and the sentence imposed on the offender is, or includes, an order under Division 2, Part 3, Division 2 of Part 3 does not include Community Corrections or - - -
37 HIS HONOUR: I see. So it is the higher - the sentence is higher in the hierarchy, is it?
38 MS HOGAN: That is right.
39 HIS HONOUR: Division 2, Part 3, is it?
40 MS HOGAN: It is Part 3, Division 2. It is quite confusing, Your Honour. If you go to the table of provisions at the front of the Act, under Part 3 it says, "Sentences">
41 HIS HONOUR: Yes, I am looking at the index, for want of a better term - table might be better. I had it a moment ago. Part 3, Division 2 says, "Custodial orders". Is that - - -
42 MS HOGAN: Yes. Then if you turn the pages, and just above - it says - so Community Corrections orders is under Part 3A. So that does not apply.
43 HIS HONOUR: So it does not apply. What is the section? Section 6AAA.
44 MS HOGAN: 6AAA, and it then goes on to say, "A fine exceeding ten penalty units or an aggregate fine exceeding ten penalty units.
45 HIS HONOUR: This is s.6AAA.
46 MS HOGAN: 6AAA.
47 HIS HONOUR: What page in your Act is that?
48 MS HOGAN: Thirty-three. I have got amendments at 17 February 2012.
49 HIS HONOUR: So it is custodial orders under Division 2 of Part 3 or fines. I see.
50 MS HOGAN: So it would appear Your Honour does not have to make a declaration in any event.
51 HIS HONOUR: Yes. I do not think it hurts to convey that the plea of guilty meant a significantly less severe sentence.
52 MS HOGAN: Certainly, Your Honour.
53 HIS HONOUR: And to say, and I repeat it again, as sometimes is the case the plea of guilty and expression of remorse is inextricably related to considerations of rehabilitation and the like. If you have done something wrong you can hardly point to your prospects of rehabilitation being very strong if you have not pleaded guilty to it. So is it a difficult section sometimes to impose. I am grateful for your assistance there.
54 I may not have, Ms Morgan, but I fear I may have raised something private to the family that not everybody knew about. Is that right or not?
55 MS MORGAN: If Your Honour is referring to my client's mother's illness, that is not an issue, Your Honour. It was not dealt with in any great length in the course of the plea, but that was simply because it was relevant by way of background. It is really not relevant to the matters to be determined on the plea.
56 HIS HONOUR: I saw some relevance in it.
57 MS MORGAN: Yes.
58 HIS HONOUR: I just noticed some disquiet and I was concerned that one of the younger members of the family might not have known about it, but that is not the case?
59 MS MORGAN: Your Honour, I will speak with the family. I am not certain.
60 HIS HONOUR: If that is the case I regret it but it was a consideration in my sentencing.
61 MS MORGAN: Yes, of course.
62 HIS HONOUR: It provided that context for him not perhaps behaving as well as he might have otherwise have done.
63 MS MORGAN: Understood.
64 HIS HONOUR: All right.
65 MS MORGAN: Your Honour, just - everyone was aware.
66 HIS HONOUR: All right, thank you.
67 MS MORGAN: So there has been no offence.
68 HIS HONOUR: Thank you very much. Yes, all right. You can come out of the dock for the moment and sit next to your family. We need to prepare the documents. Are you going to need some time, are you?
69 ASSOCIATE: I beg your pardon?
70 HIS HONOUR: Are you going to need some time, are you, Mr Bolger? Are you going to need some time?
71 ASSOCIATE: Yes, I might need it.
72 HIS HONOUR: All right. I am sorry, we will have to stand it down. I will wait in my room.
73 (At 11.16 am His Honour left the Bench.)
74 HIS HONOUR: Which one are we right to go on? Have we got that order ready?
75 ASSOCIATE: Yes, Your Honour.
76 HIS HONOUR: Good, thank you. Could I have the report, the suitability report, please? Thank you. All right. Stand up, please. I am going to read out to you the conditions of this order and then as you whether you consent to it being made, and you will have to sign the document, all right? It is an order for a Community Corrections order. It will last 24 months, therefore it begins today and ends on 2 August 2004, 14. The first requirement is that you attend at the Korumburra Community Correctional Services in Bridge Street, Korumburra within two clear working days of today, all right?
77 The usual terms are these. You must not commit another offence for which you could be imprisoned during the time that the order is enforced. Could I just say this about that. That most offences are punishable by imprisonment. So there would not be many offences you could commit that would not bring you back here. You must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations. Really and truly, I mean why is that included in the order in that form? I have got no idea what that is. Can anybody tell me so that I can tell him?
78 MS MORGAN: I do not know, Your Honour, either.
79 HIS HONOUR: Yes. I mean how ridiculous. You should go through this with the people at the Community Correctional Service and find out what that means. I am sorry that I am unable to tell you.
80 MS MORGAN: Your Honour, I will make some enquiries myself also.
81 HIS HONOUR: Yes. You must report to and receive visits from the secretary or delegate, that is from the relevant person at the Community Corrections Office. You must report to the Community Corrections Centre within two clear working days. I have told you about that. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the relevant people. They will tell you whom. What you do with these requests is go down to the office and contact them. You must obey all lawful directions from and directions of the secretary or delegate. In other words, the relevant person at the Community Corrections Office that is in charge of you.
82 The special conditions are you must perform 400 hours of unpaid community work over a period of 24 months. As I work it out, that will be four hours every Saturday for 24 months. The only basis of any regret I have got about that is that you will not be able to assist your partner in relation to your child. So for the next two years you will be spending Saturday mornings or afternoons, working and reflecting on the decision you made back in January. You must be under the supervision of a Community Corrections officer and you will be told about these programs. There will be assessment treatment and rehabilitation for alcohol use. There will be a program for that, and there will be a program for anger management and they will tell you about the circumstances of that.
83 Do you consent to the order?
84 ACCUSED: Yes.
85 HIS HONOUR: All right. I will get you to sign it, Mr Crole. Have you worked out what it means?
86 MS MORGAN: Your Honour, that question in relation to the sentencing, I don't have a copy of the sentencing regulations here today.
87 HIS HONOUR: I should imagine not many people have, but go on.
88 MS MORGAN: No, Your Honour. It is not one of the standard terms that are set out in s.45.
89 HIS HONOUR: I have never seen it before. Maybe the computer program has inserted - it came through. The program dictates to us in many ways these days, but it dictates what goes into the order. Look, I think I should just leave it there. I should imagine it is an obligation that he has but needs to find out what it is.
90 MS MORGAN: Yes.
91 HIS HONOUR: I must say I find it extraordinary that our system produces a document like that in the context in which you have got to tell a person who is being sentenced what their obligations are. I find it extraordinary.
92 MS MORGAN: Your Honour, one thing I could do very briefly is check on the Internet connection on my phone what that section means. It might be - - -
93 HIS HONOUR: As long as he knows, and it may be that he simply has to be - that he takes that document to the relevant officer at Korumburra and he asks them, what does this mean.
94 MS MORGAN: Yes.
95 HIS HONOUR: Can you do that? Because it might be an important obligation. I am sorry that I cannot tell you about it today. I should be able to do so. Do you want to say anything about that?
96 MS HOGAN: I think it perhaps should be checked, Your Honour. Given my learned friend has a capability here now to check that. Only because I have not heard that particular thing being read aloud by a judge when imposing a Community Corrections Order.
97 HIS HONOUR: No. I have never seen it in such a document.
98 MS HOGAN: Yes, and as my learned friend pointed out, it is not in s.45. So I think that it is prudent that we check it.
99 HIS HONOUR: It might be some sort of an electronic switch.
100 MS HOGAN: Yes, before he signs it, I think is best.
101 HIS HONOUR: All right. OK, I think if you take that view. I am not prepared to say that is not a responsible thing to say so you will have to wait until we look into it, I am sorry. You will have to sit in court. What is going to happen? You will make an enquiry.
102 MS MORGAN: Your Honour, I think it will take me approximately two minutes to check this.
103 HIS HONOUR: All right. He can sit outside in the hallway.
104 MS MORGAN: Yes.
105 HIS HONOUR: But he should not go any further.
106 MS MORGAN: Yes.
107 HIS HONOUR: All right, then we will deal with it. I apologise for the inconvenience to you both. All right. Let us stand the matter down for a short time.
108 (At a later stage.)
109 MS MORGAN: Would Your Honour be assisted if I - - -
110 HIS HONOUR: Yes.
111 MS MORGAN: The regulation question, Your Honour, Regulation 17 of the Sentencing Regulations:
"Offender's obligations under Community Corrections Order. An offender who is required to attend at a Community Correction location or to perform unpaid community work under a Community Corrections Order must not consume alcohol at least eight hours before attending at the centre or location, or when attending at the centre or a location or during the performance of unpaid community work, and must not use a drug of addiction or a prohibited poison when attending at the centre or a location or during the performance of unpaid community work and must not be under the influence of alcohol, a drug of addiction or a prohibited poison when attending at or while being at the centre or a location or during the performance of unpaid community work and must not be in possession of alcohol a drug of addiction or a prohibited poison at the same time or a location or during the performance of unpaid community work; (2) an offender must attend at a Community Corrections Centre or at a location as directed by the secretary and do all things necessary to have his or her photograph taken and for it to be included in the records of the Community Corrections Centre".
112 So I think I could summarise that.
113 HIS HONOUR: I think it is breathtaking, all of this.
114 MS MORGAN: I think I could summarise that, Your Honour, by saying he is not - - -
115 HIS HONOUR: I can see why the computer has only put one line in, but I should have - - -
116 MS MORGAN: I would have thought being on drugs, in any event, would constitute an offence.
117 HIS HONOUR: I should imagine there are all sorts of regulations, rules and requirements imposed by Community Corrections.
118 MS MORGAN: There certainly are, Your Honour.
119 HIS HONOUR: Yes, but I am surprised that this one has been elevated to the status of one of the mandatory terms. You have got to obey all lawful instructions and directions of the relevant people, and no doubt they will be telling him when he goes down there that he should not turn up drunk, if he has not already worked it out.
120 MS MORGAN: I think Mr Crole was already quite aware of that obligation.
121 HIS HONOUR: I would be disappointed if he was not. So what does all that mean? That means that he cannot attend to his appointments or any of his obligations, work or otherwise, affected by alcohol or drugs or other such substances, or in possession of them.
122 MS MORGAN: Correct.
123 HIS HONOUR: All right, do you understand that?
124 OFFENDER: Yes.
125 HIS HONOUR: All right.
126 MS MORGAN: The other issue, Your Honour, was the Wonthaggi location.
127 HIS HONOUR: It is Wonthaggi.
128 MS MORGAN: Yes.
129 HIS HONOUR: You have got to go to the Wonthaggi Community Corrections Centre. It is at the Wonthaggi Police Station in Watts Street, Wonthaggi.
130 MS MORGAN: That was where Mr Crole was assessed. So he is familiar with that location.
131 HIS HONOUR: It is also closer than Korumburra, is it not?
132 MS MORGAN: It is substantially closer, Your Honour. The original location was based on an incorrect address.
133 HIS HONOUR: All right. We will have another go at it, Mr Crole. I will hand that down to you. You now understand your obligations. All right, if it can be brought back up to me and I will sign it.
134 MS MORGAN: Thank you, Your Honour.
135 HIS HONOUR: All right. I will hand that back down. There will be some copies made for the - all right, just stand up. I am sorry about all this mess. It is not your fault and it should have worked much more smoothly than it did. It is important that you do know what your obligations are. Let me state them to you very plainly. You have got to do what you are told. If you do not turn up to these work appointments, if you do not turn up to your program appointments and the like they are going to pull you in, and my experience of these matters is this. It is people with enough nous and organisation in their lives to make sure they turn up on time, and if they have got a good reason, let people know, that get through. The people who have not got that capacity come back before me, and you need to know that. It is not over for you. You come back before me if you do not comply with these conditions and we would have to look at it again. You would certainly come back before me if you commit another offence during the period, and I want it reinforced to you that the opportunity I have given you not to be convicted is a very unusual step and I would be very disappointed indeed if you came back into my court.
136 All right, we will adjourn the court, thank you.
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