Director of Public Prosecutions v Eldridge

[2016] VCC 784

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00439

DIRECTOR OF PUBLIC PROSECUTIONS

V

JAKE ELDRIDGE

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2016
DATE OF SENTENCE:	9 June 2016
CASE MAY BE CITED AS:	DPP v Eldridge
MEDIUM NEUTRAL CITATION:	[2016] VCC 784

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai	Office of Public Prosecutions
For the Offender	Ms D. Giannopoulos	Dooge O'Brien George

HIS HONOUR: 

1Jake Eldridge, you have pleaded guilty to one count of aggravated burglary, one count of causing injury intentionally and one count of handling stolen goods. You have further, pursuant to s.145 of the Criminal Procedure Act consented to a summary offence of committing an indictable offence whilst on bail being dealt with by this court.  You had a summary offence, that has been dealt with as well as the three counts from the presentment.

2You heard the learned prosecutor, Ms Bhai, tell this court that the maximum sentence that may be imposed for each of those offences are as follows.  Aggravated burglary, 25 years' imprisonment.  So 25 years' imprisonment for aggravated burglary.  That should indicate to you that this indeed a very serious offence.  Causing injury intentionally, the maximum gaol sentence that can be imposed for that offence is ten years' imprisonment; and for handling stolen goods, the maximum sentence that can be imposed is 15 years' imprisonment.

3The summary offence with which you have been charged, that is handling stolen goods whilst on bail, the maximum penalty that can be imposed for that offence is three months' imprisonment.

4For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty. 

5Mr Eldridge, briefly put, it was at about 8.30 pm on 3 December 2015 when the victim, a fellow known to you, Mr Cotterell, was at his home in Gladstone Park. 
With Cotterell was a woman who he did not know.  Apparently that lady had asked if she could charge her phone and he allowed her into his house to do that.  You entered that house unwelcomed and unexpectedly.  You had been in a four wheel drive vehicle which had pulled into the driveway of the house, as I understand it, and I speak of it a little later, that was Luke that had driven you there and there was two other fellows in the back that you did not know.

6You entered the house unwelcomed and unexpectedly.  You had been in a four wheel drive which had pulled into the driveway.  You then entered the house and you told the victim, Cotterell, to come out to the vehicle and come for a drive with yourself and your mates.  Cotterell refused to leave the house.  I think that was a wise decision on his behalf.

7Two other men then entered the house, that is the two fellows that I understood were in the back seat.  They started hitting Cotterell who was still sitting on the couch.  One of those men kicked Cotterell very hard to the face.  The other man picked up a wrench from inside the house.  Those fellows told the woman to shut up.  She must have been setting up some sort of a racket trying to stop what was going on.

8Mr Cotterell copped a good pounding and managed to get up and get away from what was happening to him.  Cotterell then told you that he would go out to the car with you and the others.  However, when he got out into the back yard he took off, he ran.  As Cotterell ran from the house, he ran down the driveway, along a nearby reserve and into a neighbouring street.  You followed him and Cotterell was yelling out, "Help." 

9A nearby resident, Darren Wilcox, heard Cotterell screaming out.  He, Wilcox, ran out onto the footpath.  Cotterell ran past him and up his, Wilcox, driveway.  You arrived and you told Wilcox, "You don't want to get involved in this."  Wilcox told you, "I am now."  You were trying to intimidate Wilcox and you tried to get past him, however he would not let you.  You then ran back towards Cotterell's house.

10Cotterell remained with Wilcox and Wilcox's son until police and ambulance arrived.  He, Cotterell, was very shaken up and had blood on his face.  As a result of this offending Cotterell suffered soft tissue injuries to his face with marked swelling over his nose and facial abrasions.

11That generally sets out what occurred on that day.

12Mr Eldridge, you are now aged 23, having been born on 11 June 1992.  You have three siblings, you being the third of four brothers.  Your older brother lives in Sunbury and is employed building caravans.  Your next brother, being the second of four, is currently residing in Geelong.  He is on a disability pension.  Your younger brother, Nathan, lives at home with your parents.  Nathan attends special school as he is burdened with severe autism.

13Mr Jeffrey Cummins, in his report, which is dated 26 May 2016, so it is very recent, says you have a good relationship with your two younger brothers, in particular Nathan.  Further, you report that you were raised in a loving and caring family.  Your father unfortunately suffered severe workplace injury and he continues to have significant health problems flowing on from that workplace injury.  You attended local primary schools in Craigieburn before then attending Craigieburn High School.  Unfortunately you were bullied at school and you attended anger management classes between the ages of 12 and 14.  It seems from those reports that you have still got an anger management problem that you must address to keep yourself out of trouble.

14Mr Eldridge, when you were aged 15, you were then employed as a maintenance man at Hungry Jacks.  I interpose here, because it sort of fits in.  It is a bit out of order but it fits in with what then next occurs.  It was at this time that you became involved in the criminal justice system, that is when you were 15. 

15I pause there for a moment and mention some of the criminal history that you have got, it is not a happy picture.  You first appeared at the Broadmeadows Children's Court on 11 September 2007, when you were then aged 15.  Between that date and 11 September 2007, that is when you started, and 14 December when you finished in the Children's Court you revisit that court on two occasions, so you had four visits, one at the beginning, one at the end and two in the middle. 

16On those four appearances you have really got what often is said by those in the industry, particularly police officers, a hamburger with the lot.  You have got offences for, not convictions for, but offences for affray; behave in an offensive manner; hinder police; intentionally damage property; assault with a weapon; assault in company; possess a controlled weapon; reckless cause injury, two of them; a theft count; burglary count; theft of a motor car; entering buildings with intent to steal, that is often called burglary; interfering with a motor vehicle.  Not a happy record, but many of those court appearances, not convictions, court appearance I will guarantee you, without me knowing specifically, relate to your anger management problem.  You have got to attend to it, young fellow.

17Mr Eldridge, at those various court appearances you received, without conviction, that is why I keep saying you have not been convicted, you have just been charged with them, you got good behaviour bonds, you got without conviction probation orders which were then available in the Children's Court and on one occasion you got a without conviction fine.  For a young lad at the age of 15, these were indeed troubled times for you.

18In 2013, you graduated to the Magistrates' Court, that is because of age, where you were placed on  community corrections orders.  You also had further convictions for assault, contravene family violence orders and damage to property counts on three further court appearances, they all being the Magistrates' Court.  I suspect they might relate to family related matters where you have lost it again.  Because you had another problem at that time and I am building up to that.

19You were placed on an 18 month community corrections order in 2015.  In committing the current offences now before this court you are in breach of the community corrections order that was imposed in 2015.

20To return to when you were 15 and released on community corrections order back in the younger days, in the Children's Court matters, you found it very difficult in terms of compliance with what came with community corrections orders.  You had a good job that you had achieved through the help of the Salvation Army in gaining an apprenticeship.  To your credit you completed an apprenticeship as a motor mechanic with a Ford outlet in the western suburbs.

21At this time your personal life was unravelling, that is at the end of the that apprenticeship when you were fully qualified.  Despite your relatively young age, you had been in a relationship with Stephanie.  This relationship which was, as I am told, I think it was Cummins that told me, of approximately five years, ended when both you and Stephanie were using illicit drugs.  You found it difficult to comply with the terms and conditions of that community corrections order.  Mr Cummins speaks of it more specifically so I am leaving it to him, because I am going to quote him.  The difficulties you were encountering was it was hard for you to maintain employment and you left your position, unhappily and unfortunately with Ford.

22At about this time you also had a significant health problem, in that you attempted suicide and found yourself hospitalised, as you had become acutely depressed.  Now I quote directly from Cummins, because this is what you told Cummins and I am reading directly from what Cummins said about what you said.  Cummins reports this and I am quoting and he is of course quoting you:

23"He stated he ceased work at Essendon Ford because he was then attempting to combine full time employment with meeting the requirements of a community corrections order and also both he and his then girlfriend, Stephanie, were frequently arguing, largely because of their mutual usage of methamphetamine and it was against this background that Stephanie left him."

24I pause there for a moment.  I have had four days this week, all criminal matters this week, all young men, approximately your age, all of them are wrestling with methamphetamine.  If each and every one, you and the other three that I have dealt with this week, Monday, Tuesday, Wednesday, were off methamphetamine, we would not have been together.  It is a plague on our society.

25I continue to quote from Cummins.  Cummins then says that you told him:

26"Then approximately one month later," this is after Stephanie left you, "he commenced work at Supreme Caravans and he said he only remained at Supreme Caravans for seven months, 'During which time I was not capable mentally or physically of working.  I was still grieving concerning Stephanie and I was really depressed as Mum's sister,' that is your aunt, 'had been killed in a motor vehicle accident.'  He stated thereafter because he was so depressed and overwhelmed with his life circumstances that he remained unemployed and in receipt of job search allowance through until his arrest on 4 December last year.  He acknowledged over the 12-15 month period prior to his arrest he has also become dependent on methamphetamine which he used to self-medicate in relation to feelings of depression.'"

27Mr Eldridge, in addition to your depression, you have suffered an injury to your hand.  I believe you damaged the knuckle very severely and shortly before your arrest for these offences you were treated for contortion of a testicle which apparently is a particularly painful condition for which you were hospitalised and it has now, as I understand it, been resolved.

28Over the past two months you have formed a new relationship with Ms Chilcott.  This lady herself has significant health problems.  You know what they are so I am not going to speak about them and I accept that those problems are of great concern not only to herself but to you.  Ms Chilcott has not been able to visit you whilst you have been in prison.  I understand that her use of illicit drugs prevents such visitation rights.

29Further to your distress, this lady suffered a miscarriage of your child whilst you have been in custody.  I have no doubt that this unfortunate happening also adds to your discomfort in that you cannot personally comfort and support or

30reassure Chilcott.

31Your parents remain supportive of you.  They attend court demonstrating their support.  They were here last time and they are here again today and perhaps Ms Chilcott is too.  I do not think she was here last time but she is here this time.  That is demonstrating support for you whilst you are in custody.

32At the time of this offending you and Ms Chilcott were homeless.  You were at this time booked into a local hotel, I think it was the Mantra Hotel on some form of temporary accommodation.

33The victim of this offending, that is Chilcott - not Chilcott, I am sorry, that is your girlfriend.  Cotterell.  The victim, Cotterell, in this offending was an acquaintance of yours, and you insist he was using illicit drugs.  You further insist, and no doubt truly, that you had been helping him at the time.  You were probably all battling the same problems.  Somehow something went wrong and police became involved.  I do not know how they became involved, but they did, and you were distressed by allegations that were raised by the police apparently emanating from Jason Cotterell and involving you in some way. 

34You used another acquaintance, as I mentioned earlier, that is Luke, to assist you in visiting Jason.  Luke, together with two other apparently older men, then visited at Jason's home and thus the offending is alleged to have occurred.  I spoke of that earlier.  I do not intend to go into that in depth any further.

35I understand from what both Ms Bhai and Ms Giannopoulos has told me that Luke has been spoken to by the investigating police officers and has not been charged with any other offences.  The other two men, as frequently happens, disappeared into the ether.  Luke was not charged with any offence in relation to the aggravated burglary, and of course they have not spoken with the other two fellows, they have not been charged, and I am sure if they find out who they are and they get hold of them, they will be charged.

36I again quote from Cummins' report.  Cummins says this of you, and again, I am reading directly from what you told him.

"This has all been very stressful for me", you speaking, "being locked up for something I hadn't planned on doing.  I've now sort of adjusted to being in gaol.  I'm hoping I won't have to serve much more time and that I'll get a CCO.  I'll agree to do a urine test every week.  By being in here, it's forced me to just think about my situation and my drug use.  I'm sure this wouldn't have happened if I hadn't been into the ice.  I need help about being depressed.  I want to talk to somebody about how the ice wrecked my life, but now I'll be able to stay off the ice."

37Now I interspersed some of that observation before about ice.  No methamphetamine, you would not be sitting there.  It is a plague on our society and there have been three young fellows, same age as yourself, Monday, Tuesday, Wednesday, all with very serious matters, all in custody wrestling with this plague that we are wrestling with in our society. 

38Mr Eldridge, of concern is that there are aggravating circumstances surrounding you committing these offences.  Not only were you on a community corrections order at the time of the commission of these offences, you were also on bail for a separate offence of handling stolen goods.  You heard the prosecutor raise that matter.  It cannot be ignored.  It is said, so the prosecution insists, that that demonstrates a total lack of respect by you for the law, together with the long list of offences for which you have previously been charged and given community-based dispositions.  Again I stop.  With your anger management issues combined with methamphetamine, it is a recipe for disaster.  Both of those matters have got to be addressed by you to avoid further contact with the criminal justice system.

39Further aggravating the offence was the use of a weapon, which was used in beating Cotterell.  He had been, and was, your friend certainly prior to this visit, and that you took no steps to come to his aid to prevent him being beaten with a weapon.  You mentioned that to Cummins.

40Mr Eldridge, I assure you that I have taken into account all that has been said on your behalf by your counsel, Ms Giannopoulos.  I take into account your plea of guilty, which is indicative of your remorse.  Mr Cummins even referred to that in his report.  He said this:

"At interview he spontaneously stated he was embarrassed and ashamed regarding not assisting the victim when the victim was being assaulted.  He stated he was overwhelmed when he witnessed the victim being assaulted."

41In your letter to this court you now say that you recognise the criminality of your actions and it is your intention to cease using illicit drugs.  I hope you can.  It is a very, very difficult task. 

42I pause there for a moment.  It is my observation, having been a judicial officer now for 38 years, or whatever it is, I am frightened to even think about it, the worst friends you have got are the fellow users.  When you get out, they will want to associate with you and they will want you stay in the scene with them.  In terms of battling your own addiction and your own anger management problems, you have got to avoid these people because they are not your friends, they are enemies, because they will want to keep you in the scene.  That is what makes it so hard. 

43You have been a hardworking, industrious young man.  It is the pernicious drug, methamphetamine, that has dramatically ruined your working life and your personal life. 

44Your local doctor, the GP, Dr Ramsay, he writes that he has had contact with your family for over 35 years.  He has treated your grandfather, your father and all other members of your family over that period of time.  He says that you are a person of high integrity when not on ice. 

45Mr Daryl Jacobs of Supreme Caravans indicates that employment is available to you on your release from custody.  That probably confirms the observation I made a few moments ago, that you are hardworking and industrious so long as you have not got methamphetamine within your system. 

46You further, to your credit, have undertaken courses whilst in custody.  You have your family support.  As I have mentioned earlier, they have been here on both occasions demonstrating their support and, with your work ethic, that all indicates your prospects of rehabilitation once released from prison must be positive and good providing you keep off methamphetamine.

47The prosecutor, Ms Bhai, in her sentencing submissions, suggests that you have minimised your criminal behaviour on this occasion.  I tend to agree with that submission, but that is a natural thing that all people do.  Whenever you are in trouble, you paint the best picture you can for yourself, not the worst.  That is a cold hard fact of life.

48Your counsel, Ms Giannopoulos, concedes that these are indeed very serious charges, particularly the aggravated burglary count which attracts a 25 year maximum gaol sentence.  I do not wish to terrorise you or your parents or any of your friends at all by harping on this, but if you speak to Ms Giannopoulos or any other lawyer, they will tell you that the Court of Appeal have, in no uncertain terms, endorsed the seriousness of aggravated burglaries, and many of the aggravated burglaries relate to run-throughs where drugs are involved. 

49I take into account the principles of Mills' case.  You are indeed still a young offender.  I must add, however, your forensic history is a disgrace, and I am sure you would agree with that.  Mills' case is indicative of young people.  It is more important to rehabilitate than to punish, to put it very simply.

50The other matter - and you heard that the affidavit that was produced by
Ms Bhai this morning and has been read by Ms Giannopoulos, and I am sure if she has not discussed it, she certainly will - it is something that is emerging as a new experience for judges.  It has emerged because of what has happened out in the prison, that is, the Melbourne Remand Centre.  In that prison there was a lockdown and you were subjected to that at some stage.  That means you are not out of your cell for as long as otherwise you would be.  That means that many persons are, in that sense, penalised whilst in prison when they have not done anything wrong.  All those other ratbags that wreck the prison and created millions of dollars' worth of damage that is still being restored have created this lockdown situation.

51Now what has occurred is, and it is occurring again in your case, barristers are, very properly, raising with judges you must give a discount to the prisoner because, through no fault of his own, or no fault of her own, he has only spent one or two hours in every 24 out of his cell.  Well, that must be taken into account.  But as time passes the variation is becoming huge.  I have had one barrister stand up and say "My client is now 12 hours in and 12 hours out" and that person is in the Melbourne Remand Centre, but I have had other barristers had to concede two hours out and 22 hours in, so it varies so much. 

52So what has been done through the prosecution is really set out that you have not always been in the 21 or 22 or 23 hours in the cell, because of you being what I will call a billet, you have been on kitchen duties and things of that nature.  But nevertheless you have been in lockdown and some credit must be given to you, and I can tell you, every judge in this court is aware of the lockdown and it is hard to quantify just how you take it into account.

53I must also take into account your state of depression, but as I understand it, that depression all relates to your very private issues that occurred, and I do not want to harp on those because you have had to wrestle with your Stephanie problems, your aunt going, you are wrestling with your employment and you even took the step of trying to commit suicide.  All of those things must be taken into account, and I assure you I have done that.

54I must also take into account the provisions of the Sentencing Act.  In particular, s.5 sets out the purposes of the sentence are for just punishment.  They are the words used, or the words used are:

"The purpose of sentencing is to punish the offender to an extent and in a manner that is just in all of the circumstances."

55The next sections then go on to speak of specific deterrence and general deterrence.  I suspect in terms of specific deterrence, you are feeling most uncomfortable about what you have done.  That is what you have said to Cummins.  So, maybe specific deterrence is not so important with you, but you cannot avoid general deterrence. 

56General deterrence is those out there in the community must be deterred, if you like, from committing the same offence that you have committed.  They have got to be able to sit back, to put it simply, and say "Look what happened to him.  I am not going to do it.  I've got to be stopped", and that is the principles, very simply put, of what the Court of Appeal are saying, and very harsh penalties indeed are endorsed by the Court of Appeal for aggravated burglary in particular.

57Section 5 also refers to rehabilitation.  I have already commented upon your prospect of rehabilitation and I am certain that with the help of your parents, the help of your girlfriend and your obvious work ethic when you are well, that you have a very positive prospect of being rehabilitated.  There is a job waiting for you when you get out.  That is not often the case, but in your case apparently it is.  But there is that one big problem.  Methamphetamine.  That is the problem you have got to master.  You have also got your personal problem of anger management and you have got to attend to that as well.

58As I mentioned earlier, Ms Giannopoulos, on your behalf, conceded that these are, particularly aggravated burglary, very serious offences.  Your behaviour was atrocious conduct and must be condemned and denounced in the strongest of terms.

59Mr Eldridge, I further take into account your depression, as I have just mentioned, referred to by Mr Cummins in his report.  I will moderate the sentence that I otherwise may have imposed.  I have taken quite a number of months off what I otherwise would have done because of the depression. 

60Mr Eldridge, just stand up, please.

61Mr Eldridge, on Count 1, that is the aggravated burglary count, you are convicted and sentenced to be imprisoned for a period of 15 months.  On Count 2, that is the intentionally causing injury count, you will be convicted and sentenced to be imprisoned for a period of six months.  That six months is to be served concurrently with the sentence imposed on Count No.1.

62Pursuant to s.18 of the Sentencing Act, in relation to those sentences, you are to be given credit for having served 188 days of imprisonment, so a substantial part of the prison term is already served. 

63On Count No.3, that is the handling matter, and the summary offence matter, you are convicted and released on a community corrections order for a period of 12 months.

64The terms and conditions of that community corrections order are this.  I will read them out and then I will explain them to you.

65Pursuant to s.48D(3)(a), the prisoner is to undergo assessment and treatment for rehabilitation relating to drug abuse.  Section 48D(3)(e), treatment and rehabilitation for mental health programs.  That relates to his depression and no doubt his anger management issues.  Section 48D(3)(f), assessment and treatment for rehabilitation programs so as to teach this gentleman  how to count to ten and not get involved in further offending.  They call it programs to reduce reoffending.  Pursuant to s.48E, to be subject to the supervision of a Community Corrections officer.

66You can take a seat.

67In relation to that, just let me explain this to you.  The assessment and treatment program works like this.  If you are assessed as in need of treatment, such as drug rehabilitation, then you must undertake those programs.  If you do not, you are in breach and you will be brought back and sentenced.  The same thing applies to your mental health programs.  That is just you get assessed as to what need you have for those programs.  If you follow the program, you do everything that is asked, then that is the finish of it.  If you do not and refuse, well, then you are in breach and back you come.

68The same thing applies for what I call how you learn to count to ten rather than swing that punch.  That is anger management where you learn how to take an alternative step rather than commit a criminal offence.

69Supervision means this: that you have been appointed a supervisor, if you like, who is a Community Corrections person.  You can use that person, if you need, as a counsellor and those sort of things.  Do you understand that?

70I have not imposed, and I do not with you or anybody else - I think it is unfair that you have been in prison, to add on community work as a punishment.  I say that is double-dipping.  That is the way I view it.  Having served a prison term, that is over and done with.  Now it is rehabilitation.  Do you understand that?

71OFFENDER:  Yes, Your Honour.

72HIS HONOUR:  Thank you.  I think the only other order I have got to make is s.6AAA.  I beg your pardon.  There is a disposal order.  I make the disposal order in relation to the weapon seized.

73Had it not been for a plea of guilty, I believe I would have given this fellow at least three and a half years' gaol, at least three and a half years, 42 months, with a minimum of 27 months had he not pleaded guilty.

74Are there any other orders sought, Ms Bhai?

75MS BHAI:  If Your Honour pleases.

76HIS HONOUR:  Thanks.  You're excused, thank you.

77MS BHAI:  If Your Honour pleases.

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