Director of Public Prosecutions v Farmer

[2018] VCC 483

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01628
CR-17-01631

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANNER FARMER
BRANTEN FARMER

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10 April 2018
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Farmer & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 483

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett	Office of Public Prosecutions
For Accused T. Farmer	Mr S. English	Simon English Lawyers
For Accused B. Farmer	Mr R. Nathwani	Lethbridges

HIS HONOUR:

1Tanner Farmer and Branten Farmer, if you could each stand up please.  You have each pleaded guilty to one charge of aggravated burglary.  You, Branten Farmer, have pleaded guilty to the related summary offence of committing an indictable offence namely aggravated burglary whilst on bail.

2These offences carry the following maximum penalties.  Aggravated burglary, 25 years imprisonment, and commit an indictable offence whilst on bail, 30 penalty units or three months imprisonment.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, prosecution opening on plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

4On Friday 3 February 2017, the victims Emily Williams and her partner Brody Hall, were at home in Notting Hill with Ms Williams' two children Levi aged four years and Luca aged six months and Brody Hall's 16 year old brother Trai.  The front door of the victim's home was open but the screen door was shut.

5At about 8.30 pm the victims and Trai were playing Monopoly when they heard you at the front door.  Ms Williams went to the screen door.  She recognised you.  You were calling out about $80 owed to you for cannabis.  Ms Williams opened the screen door.  You were all yelling.  You demanded the money. 
Ms Williams and Mr Hall were frightened and concerned for the safety of their family.

6Ms Williams tried to shut the front door but it did not fully close.  You entered the victim's lounge room and you were aggressive and you continued to demand money.  (Charge 1, aggravated burglary.)

7Mr Hall retrieved his dog from the kitchen and when he returned you had left the house.

8On 9 February 2017 you were arrested and you each made no comment records of interview.  At the time of this offence, you Branten Farmer were on bail.

9In the sentencing submissions made on your behalf it was submitted that for the reasons set out in your counsel's sentencing submissions this offending was at the lower end of the range in respect of the offence of aggravated burglary.  I accept this submission for the reasons that were put before me.

10I state to each of you that I have taken into account the following matters in mitigation of sentence:

11You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.

12The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.

13You pleaded guilty at the committal proceeding on 15 August 2017.  I accept this was the earliest practicable opportunity.  I accept that you are each genuinely remorseful.

14I have been told something of your respective personal circumstances.  These matters are set out fully in the written submissions filed on your behalf.

15You, Branten Farmer, are 25 years of age having been born on 19 January 1993.  You have spent the past 14 months in custody.  This is your first period of incarceration.  A child of your previous relationship with your long term partner was born five months ago whilst you were in custody.  I accept you have been using your time in custody in a constructive manner.

16You had a checkered history at school having been expelled midway through Year 9.  You have been a user of illicit drugs and this offending occurred in the context of you detoxing from ice.

17A detailed personal history has been recorded by Mr Jeffrey Cummins, psychologist, in his report dated 20 March 2018.  You hope to work with your father in his bollard installation business when released from custody.  You have strong support from your family.

18I accept Mr Cummins' opinions, that it is unlikely you were suffering from any mental health disorder apart from drug dependency at the time of offending.  You are not currently diagnosed with a trauma related condition or with a major depressive disorder, a generalised anxiety disorder or any psychotic disorder or any personality disorder.  You do not have a general anger management problem.

19I accept Mr Cummins' opinion that you are now motivated to work full time and I accept his opinion if you were sentenced to a further significant period of incarceration this would likely to dampen your current motivation and enthusiasm for employment and ongoing rehabilitation.

20I accept his opinion that it is appropriate that you be directed to receive ongoing mental health treatment in conjunction with a community corrections order.  This is of relevance to the process of maturation and goal-setting.

21You, Tanner Farmer, are 22 years of age, having been born on 29 July 1995.  The psychologist Pamela Matthews has examined you and provided a detailed report setting out your personal circumstances and history.  She has commented at length on your developmental progress and immaturity.

22You were educated to Year 11 level.  You did not complete Year 12.  You have good work history.  You have also been a long-term user of illicit drugs and these drugs have had a deleterious effect upon your mental health.

23You now appear to be drug-free.  You are in a stable relationship.  You also have strong family support.  You engaged well with the CISP bail program. 

24You are both young men.  You appear to have been rather immature and you both became immersed in the drug world.  This has had terrible consequences for you both.  It is in that context that this offending occurred.

25There was, however, much positive material put forward in support of each of you from psychologists, friends, family and associates.  This is to the credit of you both.

26It is also apparent that you have each taken this matter very seriously.  This is appropriate as the offence of aggravated burglary carries a maximum penalty of 25 years imprisonment.

27I assess the prospects of rehabilitation of each of you as being good, provided you abstain from drugs.

28Against these matters in mitigation, however, your actions were very serious indeed.  This was a form of confrontational aggravated burglary which was no doubt a very frightening experience for the victims and their children.

29A further aggravating factor for you, Branten Farmer, is that this offending occurred whilst you were on bail and in breach of a community corrections order.

30There are no victim impact statements.

31You, Tanner Farmer, have limited prior convictions in 2015 and 2016.  You completed community corrections orders.

32You, Branten Farmer, have admitted before me numerous prior convictions.  There are approximately four court appearances between 26 November 2016 and 7 June 2011 involving convictions for motor vehicle offences, offences of dishonesty, drug offences and an offence of violence.

33The nature of some of these prior convictions, particularly offences of violence, is highly relevant to my task of sentencing you today.  I have also been provided with your complete criminal record.

34You received a community corrections order on 26 November 2016.  This offence was on 3 February 2017.  At that time you were on bail.  You have been in custody since 9 February 2017.  On 17 August 2017 at the Ringwood Magistrates' Court you were convicted and sentenced to six months imprisonment for numerous offences.  You have served that sentence.

35The pre-sentence detention for you is 249 days.  For you Tanner Farmer, the pre-sentence detention is 21 days.

36As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.

37Specific deterrence is relevant to you both, particularly you Branten Farmer, given your prior criminal record.   General deterrence is also of considerable importance in a case such as this.

38Superior courts have emphasised that this is serious offending.  It must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

39Your counsel submitted that I ought impose community corrections orders.  There is no relevant distinction between you both in terms of role.  You, Branten Farmer are older and you have worse antecedents.  I have taken this into account.  It was submitted on behalf of the prosecution that a term of imprisonment in combination with a community corrections order was an appropriate disposition.

40I have taken these matters into account together with s.16(3c) of the Sentencing Act concerning offences committed whilst on bail.

41As I stated a few moments ago, I obtained reports from community corrections officers in relation to each of you.

42You, Tanner Farmer, have been assessed as suitable for a community corrections order.  The community corrections officer recommended conditions involving community work, drug treatment and rehabilitation, mental health treatment and rehabilitation and programs to reduce reoffending and supervision.

43It is noted that you completed a previous community corrections order satisfactorily.  It was also noted that you were co-operative throughout the assessment and you consented to such an order being made.  You indicated that you would fully comply with all conditions imposed upon you.  You were assessed as being of a medium risk of reoffending.  I accept the opinions of the community corrections officer as set out in the report of 10 April 2018.

44Branten Farmer, you were also assessed as being suitable for a community corrections order.  The following conditions were recommended:  Community work, treatment and rehab drug, treatment and rehab mental health, treatment and rehab programs to reduce reoffending, supervision.

45You have previous involvement with community correctional services.  You successfully completed a community work permit in 2014 followed by two fine default orders in 2015, both of which were completed.

46You contravened the November 2016 CCO by way of non-compliance and further offending.

47You did present as willing and able to comply with a further CCO.  You reported that you would be commencing full time employment with your father upon your release from custody.  You did express the view that you could manage the commitments required under a CCO.  You indicated your preparedness to comply with such an order.  I accept the opinion of the community corrections officer that assessed you.

48I do need to explain a community corrections order to you myself and obtain your consent to the making of such an order.  Before I do that, I should indicate the overall sentence that I propose. 

49I do propose to sentence each of you to a term of imprisonment in combination with a community corrections order.  The term of imprisonment will be the time that you have each served.

50So for you, Branten Farmer, the term of imprisonment will be 249 days and there will be a declaration in relation to pre-sentence detention of 249 days.

51In relation to the offence of committing an offence whilst on bail, you will be convicted and sentenced to 14 days imprisonment and that is to be served concurrently with the sentence imposed for aggravated burglary.

52I propose to order a community corrections order of two years duration if you consent to the making of such an order and the order will contain additional terms:

53That you perform 50 hours of unpaid community work, be under the supervision of a community corrections officer and undergo assessment and treatment for drug abuse or dependency, mental health assessment and treatment and participate in programs related to factors related to the offending as directed.

54For you Tanner Farmer, I intend to convict and sentence you to 21 days imprisonment.  There will be a declaration of pre-sentence detention of 21 days.  I intend to impose a community corrections order of two years duration with the same terms as that that I have just described for Branten Farmer.

55Now you each have to consent to the making of such an order.  Before you do that I need to explain the order to you in a little bit more detail.

56Can I perhaps take advantage of your instructing solicitor there, Mr Nathwani?  Can she approach the prisoners just with the draft orders?

57MR NATHWANI:  Yes.

58HIS HONOUR:  Thanks.  I will just ask Mr Nathwani's solicitor to provide you with the orders.  So there is one for Branten.  There is one for you, Tanner. 

59Now I just need to explain something to both of you in relation to the breach of such an order.  The order requires you each to comply with certain mandatory conditions:

60That you not commit another offence for which you could be imprisoned during the time the order is in force.  The order is in force for two years;

61You have to comply with obligations or requirements that are prescribed;

62You have to report and receive visits from the Secretary or delegate;

63You have to report to the Community Corrections Centre within two clear working days of the order starting;

64You have to let the community corrections officer know within two clear working days if you are changing your address or job;

65You cannot leave Victoria without first getting permission to do so; and

66You have to obey all lawful instructions.

67So they are the mandatory conditions.  Do you understand those?

68OFFENDER T FARMER:  Yes, Your Honour.

69OFFENDER B FARMER:  Yes.

70HIS HONOUR:  Then there is unpaid community work.  That is 50 hours of unpaid community work over a two year period.  Supervision over a two year period and the treatment and rehabilitation involves drug use, mental health assessment and programs directed to offending.  Do you understand those?

71OFFENDER T FARMER:  Yes, Your Honour.

72OFFENDER B FARMER:  Yes, Your Honour.

73HIS HONOUR:  All right.  If you breach the order, you are likely to be brought before me and sentenced by me.  I want to make one thing clear.  I do not say very much about this.  If I see you again for breaching the order, you are likely to go to gaol for a long time.  I do not give these orders out often.  If I do give them out to young people who are drug addicts like you, I do not say much because I do not regard anything I say as likely to have much impact upon you except for one thing, and that is it is up to you.  If you breach it and come back before me, bring an overnight bag because you will probably be going to gaol for a long time.  Clear about that?

74OFFENDER T FARMER:  Yes, Your Honour.

75OFFENDER B FARMER:  Yes, Your Honour.

76HIS HONOUR:  If you are clear about that, that is all I need worry about.  Next time you come before me, if you come before me, we will all know where we stand.  No ifs, no buts.

77Now I just need to explain one other thing.  It was suggested by Mr Nathwani that I impose what is known as judicial monitoring in terms of you Branten.  The reason I am not doing that is because you are going to stand on your own two feet.

78OFFENDER B FARMER:  That is exactly right.

79HIS HONOUR:  You are either going to stand and make an adult of yourself, you are going to live a responsible life or you are not.  I am not going to supervise you.  I am not.

80OFFENDER B FARMER:  No, Your Honour.

81HIS HONOUR:  So if I never see you again, that will be good.  If I see you again, you will be heading out that door.  That is the likelihood.

82Now all judges are different.  My approach is cut and dried.  I have given you what I regard as an opportunity with this sentence.  In simple terms you are convicted and sentenced to time served, both of you and you are able now to get on with your lives in the community.

83OFFENDER B FARMER:  Yes, I appreciate that, Your Honour.

84HIS HONOUR:  I said what I said last time about you having good support from family, friends, girlfriends and the like.  I meant it.  They are more likely to have much more impact on you than me.  So everyone is clear about that.

85Now do I need to formally repeat the orders that I made to everyone?  I do not think I do, do I?

86MS BURNETT:  No, Your Honour.

87HIS HONOUR:  The s.18(4) declaration.  Pre-sentence detention, time spent in custody Branten Farmer 249 days, Tanner Farmer 21 days.  This is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

88There is an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act.  This is in relation to you, Branten Farmer.  Did we address this at the time of the plea hearing?

89MR NATHWANI:  It is consented to.

90HIS HONOUR: Yes. I intend to make an order that you undergo a forensic procedure for the taking of a sample in accordance with sub-division 30A of part 3 of the Crimes Act.  The reasons for making the order will be published on the order which I will sign.  I must inform you as a matter of law, a member of the police force may use reasonable force to enable that procedure to be conducted.

91The final matter is the s.6AAA declaration.  I state the sentence and non-parole I would have imposed but for the plea of guilty is three years with a non-parole period of two years.  That covers all of the formalities?

92MS BURNETT:  Yes, Your Honour.

93HIS HONOUR:  Now Tanner Farmer is at liberty to leave the dock.  Branten Farmer just has to be processed by the authorities.  So you will just have to go with the prison officer until that is done.

94OFFENDER B FARMER:  Thank you, Your Honour.

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