Director of Public Prosecutions v Elston

[2017] VCC 1946

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00890

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE ELSTON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2017
DATE OF SENTENCE:	18 December 2017
CASE MAY BE CITED AS:	DPP v Elston
MEDIUM NEUTRAL CITATION:	[2017] VCC 1946

REASONS FOR SENTENCE
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Subject: Criminal law - sentence      

Catchwords:   pleas of guilty to one charge of armed robbery, one charge of aggravated burglary, one charge of burglary and one charge of theft – two separate incidents of offending within a month – offender aged 19 at the time, now 20 – aboriginal man – father of infant but separated from partner – living with mother- unemployed – mild intellectual disability – using ice and cannabis at the time – remanded in custody and ceased drug use – bailed to CISP and exited successfully – no further offending – reasonable prospects for rehabilitation – remorse – insight      

Sentence:      82 days (time served)  18 month Community Correction Order     ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantino     at sentence: Mr M Roper	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	M. Brugman

HER HONOUR: 

1Kyle Elston, you have pleaded guilty to one charge of armed robbery, one charge of aggravated burglary, one charge of burglary and one charge of theft. 

2The first incident, that of armed robbery and aggravated burglary, occurred on 22 August 2016 when you went to a house in Hamlyn Heights, Geelong at about 4 pm.  You knocked on the door and spoke to the owner, Mr Jacov Janeczko, known as Joe.  He was 93 years old at the time and he died only recently in August this year. 

3Joe did not speak English well and he could not understand you but believed you were asking for a man whose name he could not understand.  You then left but returned ten minutes later and again spoke to Joe, this time asking for a different man whose name sounded like Wally, the name of Joe's son, who lived there with him.  Wally is a man with an intellectual disability who had spent the day doing voluntary community work and who returned home at 5.30 pm that evening.

4At about 6.45 pm you again went to the house and tried to get in through the locked window of Wally's bedroom.  He was in the room, reading the newspaper.  He heard a rattling noise at the window and was afraid, so he left the room and went to the kitchen to tell his father.  He then went to the lounge room where he waited, listening for further noises. 

5Meanwhile you had been unable to gain access through the window, so you walked to the back of the house.  There you located a garden hose, which you turned on and wedged in the security door so that water would begin to flood into the house.  Joe saw water coming from under the back door into the corridor and thought the hot water system might have burst, so he went to investigate and found the water was coming from outside.  He unlocked the mesh screen door and removed the hose, then went outside and noticed the flywire screen from the bedroom window had been removed.

6Whilst Joe was in the backyard you entered the now unlocked back door and locked it from the inside, locking Joe out of the house.  Inside the house you went into a spare bedroom and began searching through cupboards and drawers.  Wally heard the door to that room open and close and, thinking it was his father, went to find him.  He entered the spare room and found you wearing a mask.  You immediately produced a knife and held it in front of you, two metres away from Wally, saying to him, "Wal, give us the money, give us the money".

7Wally refused and you punched him in the face, causing him to fall backwards onto the carpet in the hallway.  You kicked him while he lay on the floor and then dragged him along the floor before punching him to his head and to the left side of his face with your right fist with the knife still in your left hand.  You hit him ten or 15 times during the assault.  They were forceful punches which hurt him and he was crying out for you to stop.  You then ripped his wallet from the rear pocket of his trousers.  The wallet contained $359 cash and some personal papers.  You then ran out the back door. 

8Joe heard his son calling out in distress and tried to re-enter the house but found the door locked, as were the backyard gates.  He had to leave the premises via a side gate and go to his neighbour for help.  Wally was taken to hospital suffering from severe facial swelling and bruising and stayed overnight to be monitored.  Fortunately there were no fractures, but he had a black eye and swelling and soreness to his face, neck and back.  

9The police were unable to locate you for about a month.  Wally had not been able to recognise your voice, but fingerprints were found on the outside of his bedroom window.  When arrested and interviewed you denied having been at the house and you were fingerprinted and released without charge.  Analysis of the fingerprints revealed them to be a match with yours and you were again arrested and interviewed, resulting in admissions by you.  You denied kicking Wally and said you had not used a knife but threatened Wally with a pair of tweezers.  You said his wallet had contained $150 and you had spent it on food. 

10The charges of burglary and theft occurred on 16 September 2016 at a house in Norlane.  You climbed the back fence of the property and at the rear of the house you removed an aluminium screen from a window, but the window itself could not be opened.  You then found a bathroom window that was partially opened and you climbed through it.  Inside the house you ransacked it and stole a large number of items, including a TV, an iPad, a computer, two cameras, two sets of car keys, jewellery and clothing.  You left the house. 

11One of the occupants returned home and found the door open and the lights on and then located items of her property scattered in the backyard in a trail leading to the back fence.  More items were found in the reserve adjacent to the back fence.  The police attended and found fingerprints outside the bathroom window and in the bathroom.  Once again these were analysed and matched yours.  You were interviewed on 13 December and denied the offending, claiming to have been home that night. 

12A victim impact statement was provided by Wally Janeczko, whose father Joe, as I said before, had been aged 93 at the time of the burglary and he died just recently.  The victim impact statement was prepared and signed in May 2017 and Wally described being angry that his father was also the victim of this vicious attack.  He himself suffered a lot of pain for weeks and the bruising took a long time to go away.  He said he does not sleep well since the attack and he does not feel safe in his own house.

13Wally's brother Mick also provided a statement which was prepared and signed in September this year shortly after his father's death.  He said he had been interstate at the time of the attack and had been very anxious, hearing what had happened.  On returning home a few days later he found his father was very anxious, sleeping with a knife under the bed and a steel pipe at the front door.  In fact he felt so unsafe that he would be sitting up all night watching TV and sleeping by day.  Joe told Mick how worried he had been when he was locked out of the house and Wally was inside being beaten. 

14Ruza Maros also provided a victim impact statement.  She and her mother were the occupants of the house in Norlane and Ms Maros described the violation they both felt at having their personal items taken, items which could identify them and which were precious to them, as well as items of significant monetary value.  They both had to take time off work and, despite being insured, they were left out of pocket.  They were unable to go on a planned holiday because of this and because they felt too anxious to leave their house unattended.

15Ms Maros addressed you personally in her statement saying:

"I want you to know that your crime has affected our family but not our strength and resolve to move on.  I hope you never know what it's like to work so hard for something only to have it taken away from you".

16These are very serious charges and the maximum sentences are as follows:  for armed robbery and for aggravated burglary, 25 years' imprisonment; and for burglary and theft, ten years. 

17There are several mitigating factors I must take into account in determining what is a just and appropriate sentence.  The first is that you pleaded guilty at an early stage.  You indicated your intention to plead guilty to Charges 3 and 4 in March at a case conference and in May at a committal mention you indicated a guilty plea to Charges 1 and 2.  That has avoided the need for a trial and for any of the witnesses to have to give evidence, which is of great importance in a case like this, and you are entitled to a discount on your sentence for that.

18It is also an indication of remorse and you have expressed your regret at your behaviour to others as well.  That is important because it shows you understand how wrong your behaviour was and that you have some sympathy for Wally and his family and for the other people whose property you stole from their house. 

19I will now turn to your own personal circumstances, because they suggest some very strong mitigating factors.  You are aged 20 and you grew up in Geelong.  Your father is a Barkinji man from western New South Wales and you are one of eight children by him to two different mothers.  It has long been understood that you suffer from a mild intellectual disability but not with any mental health problems other than some quite serious symptoms of anxiety and depression.

20Your cognitive abilities were tested by a neuropsychologist early this year and he found you to be quite a good historian about your family but very reluctant to talk about other things.  You do have difficulties with organisation and with literacy, both reading and writing, and this has made working too difficult, as you found it hard to pick up what was expected of you.  Formal testing showed that you have several significant cognitive disabilities which represent a deterioration since you were tested at school in 2009.

21Dr Vowels, who tested and assessed you, provided a very detailed report and considers that you possibly suffered an additional acquired brain impairment from several head injuries but also from your year-long exposure to ice.  These problems are diagnosed as Dysexecutive Syndrome.  Dr Vowels does consider that you are unable, because of these deficits, to utilise experience and to reconstruct the outcome of a previous similar encounter, and so you then fail to learn from experience.  You are unable to predict or anticipate outcomes and you lack a capacity for empathy.  Therefore it is hard for you to recognise the impact of your behaviour on others. 

22A psychiatric assessment was conducted shortly afterwards by Dr Leon Turnbull and he found it very difficult to communicate with you, leading him to wonder whether you were fit for trial.  But he concluded that possibly you found it hard to communicate freely with professional people and there may be some cultural and emotional barriers at work in this regard. 

23In December last year you were bailed onto the CISP program, and Mr Michael Davis produced a report stating that you cooperated well with the various services to which you were referred, including for drug and psychological counselling, but that your communication improved when you attended appointments alone without a family member.  You completed that program after 16 weeks. 

24During that time you were also supported by the Wathaurong Aboriginal Cooperative and Ms Webber's report about her time spent with you suggests the same communication problems that others have experienced with you, but she appeared to have made some progress with helping you to understand the seriousness of your offending and the impact it had on the victims. 

25After the plea hearing at court you were assessed by Corrections to be suitable for a Community Correction Order and a Justice Plan.  Your risk of reoffending has been assessed as medium and the recommended conditions of the order are based on that assessment with the need for an experienced case manager. 

26Dr Vowels noted your report of the terrible time you had in prison before you were released on bail and that this is consistent with the difficulties you have in understanding written directions and rules that prisoners are required to understand and follow.  Dr Vowels also noted that a concerning risk if you were imprisoned would be your impulsivity and poor recognition of outcomes and your inability to calm yourself when agitated.  Most other prisoners would not have this degree of dysfunction and your experience of prison would be much harder than for them, as I have already indicated.

27My conclusion is that taking into account this quite complex combination of factors, there is no need for you to spend further time in prison.  Your case is unusual in that this offending would almost always mean that quite a significant prison term would be imposed, but, because of your disabilities, your sentence is not one that would serve as a deterrent to others.  It is designed to assist you to become rehabilitated, which will also protect the community in the long run because your risk of reoffending is likely to be reduced by the conditions of the Community Correction Order and the Justice Plan, requiring you to take part in counselling and programs to assist you to lead a life free of offending.

28The fact that you are still very young and have no prior convictions are important matters that I take into account.  For young people their prospects for rehabilitation are of great importance and your prospects are improved by the fact that you have not offended in the past.  Unfortunately your first instances of criminal behaviour have been at a serious level. 

29Would you stand now, please, Mr Elston.

30For all the charges I sentence you to the 82 days of imprisonment which you have already served by way of pre-sentence detention and I shall cause that to be noted on the court record.  The imprisonment order will be an aggregate order.  I shall also impose a Community Correction Order with a Justice Plan.  The Community Correction Order will last for 18 months and will start today.  There will be convictions recorded for each of the charges.

31You will be supervised and you must perform 80 hours of unpaid community work over 12 months.  So I am giving you plenty of time to do that because of the problems you have with written directions and instructions and things like that. 

32You must undergo assessment and treatment for drug abuse and must take part in programs to reduce the risk of reoffending.  Similarly you must comply with the conditions of the Justice Plan, which will include treatment for drug and alcohol abuse and counselling.  Importantly the plan will offer you help with literacy and numeracy and with vocational support, meaning it will help you with opportunities for employment.  I understand that you are very interested in that.

33The prosecution seeks an order that you pay compensation to Wally and I am just going to confirm the amount of that in a moment.  I do not think I have got any instructions as to whether there is consent to that or not, but I will talk to Mr Sullivan about that shortly.

34The prosecution also asks for an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained from you.  Mr Sullivan, I had better ask you now.  Consent?

35MR SULLIVAN:  Consent, Your Honour.

36HER HONOUR:  All right.  Now, that means that the police have the power to use reasonable force to obtain a sample of saliva from you, but I trust that will not be necessary.  If you had pleaded not guilty to these charges I would have sentenced you to 12 months' imprisonment and a two-year Community Correction Order. 

37Now, finally, Mr Elston, you will be required to come to court from time to time to see me.  That is called judicial monitoring.  You come on your own, there will not be any lawyers here, but there will be a report from your case manager to tell me how you are getting on.  I will be talking to you about that report.  The first date for that is on 1 March next year at 9.30.  You go along to Geelong Court and there will be a video link and I will be here in Melbourne. 

38Now, Mr Sullivan, what about  the compensation order?

39MR SULLIVAN Consent, Your Honour.

40HER HONOUR: I will just check the amount.  Do you have that amount, Mr Roper?

41MR ROPER:  $133, Your Honour.

42HER HONOUR: The order that was handed up to me last time refers to $483.  Can I give that back to you?

43MR ROPER:  I think that's the cash and the damage, Your Honour. 

44HER HONOUR:  So that is correct, is it?

45MR ROPER:  Because there was the theft of the money and the damage, the $133 was related to the damage, so that makes $483.

46HER HONOUR:  Is that what you understand, too, Mr Sullivan?

47MR SULLIVAN:  Yes, Your Honour, yes.

48HER HONOUR:  The order for compensation will be $483

49MR ROPER:  Four-eight-three, yes.  I just had a note about the damage, it didn't mention - neglected to mention the cash that was stolen.

50HER HONOUR:  All right, I'll just find out about that.  A stay of time for that, Mr Sullivan?

51MR SULLIVAN:  Three months, Your Honour.

52HER HONOUR:  Yes, three months, three-month stay.  Mr Elston, you've got three months to pay that money.

53OFFENDER:  Yep.

54HER HONOUR:  I think, Mr Sullivan, do you want to go and have a look at the order  before he signs it?  Mr Sullivan, I didn't tell Mr Elston where he needs to go for the appointment.  He has to go to - Mr Elston, you have to go to the State Government offices where the Corrections office is. 

55OFFENDER:  Yep.

56HER HONOUR:  It's Level 5, 30A Little Mallop Street, Geelong. You have go to there within 48 hours of today, so that's by 4 o'clock on Wednesday.

57OFFENDER:  All right.

58HER HONOUR:  So you've got two days to get there. 

59MR SULLIVAN:  As it pleases Your Honour.

60HER HONOUR:  Thanks, Mr Sullivan.

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