Director of Public Prosecutions v Crozier

[2017] VCC 621

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00171

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CROZIER

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 May 2017
CASE MAY BE CITED AS:	DPP v Crozier
MEDIUM NEUTRAL CITATION:	[2017] VCC 621

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Accused	Mr D. McGann

HER HONOUR:

1Michael Crozier, you have pleaded guilty to one charge of attempted aggravated burglary.  The maximum penalty for that offence is 20 years' imprisonment.  Further, you have pleaded guilty to two charges of common assault.  The maximum penalty for each offence is five years' imprisonment.

2The circumstance of your offending is set out in the prosecution opening tendered upon your plea as Exhibit 1.  I direct that a copy be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.  In essence in November 2016 you became aware of allegations of family violence having being inflicted upon your niece in the context of a relationship breakdown.  You were her only relative in Australia and she subsequently moved into your home with your family.  The matter was discussed, including with your niece's immediate family in Ireland.  They, it seems, were very unhappy about all that had occurred and the victim was indicating that she intended to return home.  There was, it seems, some pressure from your niece's family and your own wife for you to take action in relation to his matter. 

3Some three days after your niece moved into your home you decided that you would go to the home of your niece's ex-partner in order to scare him and damage his house.  By your plea you admit that you attempted to enter as a trespasser with the intention to damage property therein.  Your wife drove the car and for reasons that seem inexplicable having regard to your proper role as a parent, you took two sons, aged nine and seventeen, with you.  You were also in possession of two baseball bats.

4When you arrived at the premises your niece's ex-partner was not home but the house was occupied by a couple who boarded with him.  You and your eldest son approached the door each armed with a bat and started banging. 
There was no reply, which seemed to make you angry and you commenced striking the door with the bat.  The female occupant spoke to your son and noted that he said "Just let us in".  You approached the window saying that Karl had punched Marla and that you would not hurt the occupant of the house. 
You said you just wanted to wreck the house and "punch Karl's head in". 
The female occupant told you Karl was on his way home. 

5You were demanding to be let in and banging on the front door with the bat. 
At some stage you broke a panel of glass and reached through trying to open the door but the door handle was broken and your attempt was unsuccessful.  Police were called and you left the premises with your own family.  The female victim said she feared for her life and the male victim described himself as "a bit scared".  He also said his partner was crying.

6You were arrested and interviewed.  You gave what in my view was a frank record of interview detailing your involvement and the reasons for your offending.  I have been told you wrote a letter of apology to the victims two days later.  A copy of this letter was tendered upon your plea.  It was not sent due, it seems, to these ongoing proceedings but I accept that the remorse expressed therein was genuine.

7This is, on any view, serious offending.  We all have a right to live in our community and enjoy the safety and sanctuary of our homes without being subjected to this kind of offending.  There can be no vigilante justice in a civilised society and your belief as regards your niece's ex-partner provided absolutely no excuse for your appalling conduct.

8The actual victims were, of course, innocent bystanders to whatever may have occurred.  The community simply cannot and will not tolerate armed offenders seeking to invade our homes.  The message must be clear that condign punishment will result in appropriate circumstance.

9You have no prior convictions and one prior appearance before the court over 25 years ago where, without conviction, you were placed on a bond to be of good behaviour in relation to a single charge of criminal damage.  I do not regard this matter as having any weight in the sentence I will impose this day.  You are entitled, in my view, to rely upon your very substantial history of good conduct.

10You are now aged 49.  You were 48 at the date of this offending.  You were born in Belfast and immigrated to Australia with your family when you were five.  You completed Year 11 at school with some difficulty resulting from dyslexia.  You are married, you have two sons who I have already described.  You have a strong work history including about 12 years managing night clubs and you currently work seven days a week in your own business sub-contracting delivery for Tip Top.  You have maintained this despite very real issues as regards your back and pain management.  You are the primary breadwinner in your family.  Those with whom you contract are aware of these proceedings as you took the view that that was the proper course.

11You are actively involved in children's sport and you coach a basketball team in Berwick.  You are very concerned in relation to the impact of these proceedings as regards your future in that regard and you have had discussions with the club about this. 

12As regards substances, you report having difficulties with alcohol from about age ten to 2010 or 2011.  You were then abstinent for five years until about
12 months prior to this offending.  Having regard to the material tendered upon your plea including the psychological report it seems that you consumed substantial alcohol in either the day prior or the day of this offending.  In any case such consumption is not mitigatory.  You have, on a positive note, subsequently achieved and maintained abstinence once more.  You have, it seems, some history of drug abuse but that ceased some 15 years ago and is not relevant for my purposes. 

13As I have noted, you have chronic back problems in relation to which, it now seems, you are appropriately medicated.  You have been receiving treatment from Ms Knapp, the psychologist, since November of last year.  Ms Knapp says you have an adjustment disorder with mixed anxiety and depression, chronic pain and a longstanding drinking problem.  It is not suggested that she identified any fact or matter relevant to the applications of Verdins principles and the report is best seen as providing context as regards your offending and supporting the proposition that you have sought to pursue rehabilitation to ensure that you do not find yourself back before the criminal courts.

14Tendered upon your plea were also a number of references and testimonials from those who know you well in many facets of your life including your work and involvement in children's sport.  It is fair to say that the man described in those documents is at significant odds from the man who committed these offences.  The authors express their ongoing support of you and confidence as regards your future.  This is positive in terms of your rehabilitation.

15In my assessment your prospects of rehabilitation are excellent given your history and the efforts you have made in this regard post this offending including your abstinence from alcohol and engagement in treatment.  You express remorse from an early stage and, in my view, you accept and understand the wrongfulness of your conduct.  You have strong family and community supports and ongoing stable employment.  These factors combined to form a very positive outlook.  In my view you are a low risk of re-offending.

16I take into account your plea of guilty.  I note you pleaded guilty at the first available opportunity having made full admissions as regards your conduct.  You have spared the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial.  In my view you are entitled to the full benefit of an early plea and I have sentenced you on that basis, noting of course that you have no relevant prior history.

17Your counsel submits that a community correction order is within range and the Crown concur.  As well as matters personal to you I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I will impose this day.  The community cannot and will not tolerate offending which so seriously compromises the right of the community to feel safe in our homes.  Any sentence must manifest denunciation of your conduct and impose just punishment. 

18These are, particularly Charge 1, serious offences.  I have considered carefully whether there is any disposition open that does not include some element of custody.  I have come to the view that in your case all elements of sentencing can be satisfied via the imposition of a Community Correction Order.

19Accordingly, on all charges you are convicted and placed on a Community Correction Order.  The period of the order is 18 months.  You are to be under the supervision of a Community Correction officer.  You are to perform
120 hours unpaid community work over the period of the order.  You are to submit for assessment and treatment in relation to mental health as directed by the regional manager.  You are to report to the Pakenham office of Corrections within two clear working days of the making of this order. 

20I direct it be noted in the records of the court that were it not for your plea of guilty I would have imposed a total effective gaol sentence of 24 months with a minimum of 14.  I make a compensation order in the sum of $500 in the terms of the draft to which you have consented this day. 

21Finally the Crown make application pursuant to s.464ZF(2) of the Crimes Act for an intimate forensic sample to be taken from you for placement on the database.  You do not oppose that order.  I am satisfied the seriousness of the circumstances of your offending warrant the making of the order and that the granting of the order is in the public interest.  I make the orders in the terms of the draft which I have signed this day.  I inform you that police may use reasonable force to enable this procedure to be conducted.  In order for that procedure to be undertaken - what is the appropriate police station somebody?

22MR McGANN:  I imagine Berwick police station, Your Honour.

23HER HONOUR:  Berwick.

24MR McGANN:  Yes.

25HER HONOUR:  I am just looking it up.

26MR McGANN:  Sorry, I stand corrected, Your Honour, Narre Warren police station.

27HER HONOUR: Narre Warren, yes all right. Pursuant to s.464ZF(2)(a) I inform you, Michael Crozier, that for the purposes of undergoing the said procedure you must report to the officer in charge of the police station at Narre Warren during the period of four weeks which commences 28 days after the date of this sentence, which is today or once an institute of conviction appeal is finally determined and the conviction, the forensic sample offence is upheld, whichever is later.

28In simpler terms, four weeks from today, a period of four weeks commences. 
It is that period of four weeks in which you must present yourself to the officer in charge of the Narre Warren police station for the purposes of having the procedure conducted. 

29Mr Crozier, I inform you that if you breach this order you will be brought back before me.  It is the equivalent of holding your hand up and saying "Send me to gaol" because that is what will happen.  You are being given a very substantial opportunity.  Attempted aggravated burglary almost inevitably results in a term of imprisonment.  You are being afforded an opportunity to prove that your rehabilitation is indeed manifest.  If you were to come back for re-offending you will be sent to gaol.  It is not like the Magistrates' Court, you are not just brought before the next judge, you will be brought before me and I will know I have told you this.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HER HONOUR:  Very well, have a seat.  The orders need to be signed.

32MR McGANN:  Your Honour, there was just one point ‑ ‑ ‑ 

33HER HONOUR:  Yes.

34MR McGANN:  ‑ ‑ ‑ when Your Honour was enunciating the orders.

35HER HONOUR:  Yes.

36MR McGANN:  Your Honour enunciated the standard order that my client must attend within 48 hours of today to the corrections office. 

37HER HONOUR:  Forty-eight, they're working, they're working - it is two clear working days not 48 hours.

38MR McGANN:  Yes, I - that's right.  He ‑ ‑ ‑ 

39HER HONOUR:  It is two clear working days.

40MR McGANN:  He has an appointment on Tuesday, I notice in the report, at 2.00 at Pakenham.

41HER HONOUR:  That is odd.

42I McGANN:  It's longer than I expect.

43HER HONOUR:  It is usually two clear working days.  I will make this order unusually because in the body of the order it in fact says two.

44I McGANN:  Yes, yes.

45HER HONOUR:  I will include the words "or otherwise as directed by Corrections".

46I McGANN:  Thank you, Your Honour.

47HER HONOUR:  Thank you. 

48I McGANN:  I just didn't want to ‑ ‑ ‑ 

49HER HONOUR:  Yes, no certainly you do not ‑ ‑ ‑ 

50I McGANN:  ‑ ‑ ‑ fall at the first hurdle.

51HER HONOUR:  Yes, indeed.  We will just leave it.  That is on the transcript now.

52I McGANN:  Yes, Your Honour.

53HER HONOUR:  The order prints in the usual form.  There will be no difficulty.  The breach would have to come before me.  No-one is going to breach him, it is all over the transcript, all right?

54I McGANN:  The court pleases.

55HER HONOUR:  Thank you.

56I McGANN:  Thank you, Your Honour.

57HER HONOUR:  Thank you.  Counsel should satisfy themselves in relation to the order and it should then be signed.  Just show the prosecution as well.

58I McGANN:  Might I approach the dock?

59HER HONOUR:  Certainly.  I thank the Crown instructor for having to hand things such as the list of police stations.

60I McGANN:  Thank you, Your Honour.

61HER HONOUR:  Thank you.  Nothing?  Counsel, is there anything further?

62MR WILSON:  Nothing further, Your Honour.

63I McGANN:  Nothing further.

64HER HONOUR:  Yes thank you.  I thank counsel for their assistance and I stand down.

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