Director of Public Prosecutions v Farrell

[2014] VCC 1226

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00888

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY FARRELL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2014
DATE OF SENTENCE:	1 August 2014
CASE MAY BE CITED AS:	DPP v Farrell
MEDIUM NEUTRAL CITATION:	[2014] VCC 1226

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty – aggravated burglary x 1; recklessly cause injury x 1. Victim ex-partner of accused’s sister; alcohol and drug addiction; insight into addiction; plans to attend residential program; psychological counselling; general deterrence
Cases Cited: R v Verdins [2007] VSCA 102
Sentence: Community Corrections Order 2 years  200 hours  community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pattison
For the Offender	Mr S. Preece

HER HONOUR: 

1Jeffrey Farrell, you have pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing injury. 

2The background to these offences is that your sister had been in a de facto relationship with Joel Smith, the victim in this matter.  They had lived in a house jointly owned by her, your mother, Cynthia Farrell and your mother's partner, Michael Johnson.  When the relationship ended in 2013, your sister left the house and the family asked Mr Smith to vacate.  Tenants were placed in the house, and Mr Smith, instead of vacating, moved into a bungalow at the rear of the house.  Both parties engaged solicitors, and Mr Smith had a caveat placed on the house, claiming he had an equitable interest as he had carried out renovations at his own expense.  Your sister wished to retrieve some personal items from the house left there when she moved out.  The relationship between her and Mr Smith had not ended amicably nor were there friendly relations between Mr Smith and the rest of your family.  She did not feel comfortable in going to the house to claim her personal property.

3On 18 September 2013 you had been drinking with your sister and her boyfriend.  You were very drunk and, when questioned later, you said you could not remember anything else about the night.  That night, at about 11 pm, Mr Smith was at home in his bungalow with his girlfriend when a tenant in the main house heard glass breaking and the front door slam.  The tenant rang Smith and told him someone had broken into the house.  You and the co-offender, wearing masks, had broken in through the front door and, after forcing open the door of an empty room, you tried to open the door of the bedroom into which the tenant had retreated in fear.  He sat against the door to prevent it opening.  Smith then entered the house, holding a steel pole, and the co-offender punched him to the right eye.  Smith hit him with the pole and, as he backed off, you then hit Smith on the head with a fist.  The other offender attacked Smith again, whereupon Smith held him in a bear hug.  They wrestled together until the offender attempted to gauge Smith's eye, causing him to scream.  You then said "Let's go."  Smith went to hospital and was treated for a small laceration on his right eyebrow. 

4Several hours later, on 19 September, police went to your home and found you there intoxicated, and you were uncooperative and abusive towards the police.  On searching your car, they found two pairs of Nike shoes matching the description of shoes that were missing from the house you had broken into.  Fingerprints and DNA found at the scene matched yours. 

5You were interviewed by the police on 11 December.  You pleaded guilty at the earliest possible stage, at the committal case conference on 20 May 2014.

6As far as your personal background is concerned, you are a 30 year old single man with a very profound addiction to alcohol and, until a year ago, an addiction to amphetamines as well.  Despite this, you are a qualified bricklayer, running your own business now for three years.  There are strong indications that you also suffer from depression and anxiety, and indeed you are being prescribed a range of medication for that condition as well as medication designed to assist in reducing the craving for alcohol and to treat the effects of withdrawal.  However, there is no link between these conditions and your state of mind in relation to the offending.  You were drunk, but your only previous offending was also committed while drunk.  Even though you have no memory of the event because of your drunken state, I am not satisfied that this case attracts the principles set out in the decision of Verdins with the effect of reducing your culpability.  On the other hand, the experience of imprisonment would be more difficult for you by reason of the complex medication regime you require, and that enlivens a separate limb of the decision in Verdins, so I take that into account to reduce the severity of your sentence. 

7The house has remained the subject of dispute, but nothing has been heard from Mr Smith's solicitor since early this year.  Your family is considering taking steps to have the caveat removed.  The renovations carried out by Mr Smith were in respect of a bathroom, for which he was paid by the owners, a temporary bar in the garage, which was removed, and a pergola, for which no permit had been obtained and which had to be removed. 

8It was against this background that you apparently decided, in a very drunken state, to take matters into your hands and to break into the house knowing tenants were there and with no regard for their rights or welfare.  It seems that your memory has been badly affected by repeated intoxication, hence the treatment you are receiving from Dr O'Donohue.  Surprisingly, perhaps, given the level of your abuse of alcohol and drugs, you have avoided trouble with the law for most of your adult life but for two court appearances more than ten years ago for minor matters. 

9As well as the treatment from Dr O'Donohue, you are also having counselling with a psychologist, Ms Jansen, whom you consulted out of concern for the harm your addictive lifestyle was causing.  Ms Jansen considers you are motivated to change and have made progress in learning relapse prevention strategies.  She considers you may need treatment at a rehabilitation centre and, indeed, you are hoping to be able to take part in such a residential program.

10Your family, particularly your mother, is supporting you in your rehabilitation and she will continue to provide you with accommodation in her home. 

11Clearly, a major focus of the sentence I impose must be general deterrence, the need to deter others from this serious crime.  People are entitled to feel safe in their homes rather than be terrified and, indeed, injured by those who consider themselves entitled to take the law into their own hands.

12This case is a serious example of aggravated burglary, occurring at night and in the company of a co-offender, but with the qualification that no weapon was used and that the injuries inflicted were not serious.  As it was, Mr Smith said in his victim impact statement that he had treatment to his eye in hospital.  Ms Meggs, his girlfriend, was not injured, but both suffered from stress as a result of the attack and lost time from work.

13As for specific deterrence, you appear to have developed the insight that usually comes with advancing maturity, but also have developed a resolve to change that is very difficult to maintain in cases of addiction like this.  Your motivation augurs well for your rehabilitation and removes the need for a severe sentence. 

14You have been assessed as suitable for a community corrections order and your risk of reoffending has been assessed as low.  The prosecution concedes that such a disposition is open, given your good prospects for rehabilitation and your limited prior criminal history.

15Sentences for aggravated burglary have been the subject of considerable attention by the Court of Appeal in recent years because of the fact that the maximum penalty is very high, 25 years, and because a lenient sentence may not reflect the gravity of the offence.  You are also facing a maximum penalty of five years for the charge of recklessly causing injury.

16Taking all matters into account, I have concluded that a prison term in this case is not necessary, as the required sentencing objectives can be achieved without it.  Accordingly, I will impose a community corrections order.  I will get you to stand now, please, Mr Farrell, I will explain the details.

17The order begins today and lasts for two years.  You will be under supervision and you must perform 200 hours of unpaid community work over 2 years and you must be assessed for treatment for drug and alcohol use.  Half of those hours may be satisfied by your attendance at a residential rehabilitation centre if that is what you choose to do. 

18You must attend the Ringwood Community Corrections Office no later than 4 pm on Tuesday 5 August.  If you had pleaded not guilty to these charges, I would have sentenced you to a three year community corrections order with 300 hours of unpaid work. 

19The prosecution seeks a disposal order in relation to items seized.  That is consented to and I make that order. 

20Mr Farrell, the community corrections order has to be signed by you, and that will be handed to you in a moment.  Would you like to have a look at that on the way through, Mr Preece?

21MR PREECE:  No, I don't think I need to, Your Honour.

22HER HONOUR:  Very well.

23HER HONOUR:  Anything else, Ms Pattison?  Have I omitted anything?

24MS PATTISON:  Nothing further, Your Honour.

25HER HONOUR:  Thank you.

26MS PATTISON:  Your Honour, I understand it's with conviction.

27HER HONOUR:  Yes.

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