Director of Public Prosecutions v Fawns

[2024] VCC 324

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01558

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE FAWNS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF SENTENCE:	20 March 2024
CASE MAY BE CITED AS:	DPP v Fawns
MEDIUM NEUTRAL CITATION:	[2024] VCC 324

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Recruit child to engage in criminal activity - aggravated burglary

Legislation Cited: 

Cases Cited:

Sentence:18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr L. Dogger	Daniel Taylor Lawyers

HIS HONOUR:

1Luke Fawns, you have pleaded guilty to two offences: one charge of recruiting a child to engage in criminal activity, for which the maximum penalty is imprisonment for 10 years; and one charge of aggravated burglary, for which the maximum sentence is imprisonment for 25 years.

2You have no prior convictions, although during the course of the plea hearing it was noted that you had a court appearance for some offending conduct that occurred prior to this offending conduct, for which you appeared in court and were fined.

3The prosecution tendered and relied upon a summary of prosecution opening for the plea hearing.  I do not propose to go through it in detail, but suffice to say that at the time of the offending on 8 December 2019, you were aged 22.  You are now aged almost 27.

4The offending arose from an approach you made to a 16-year-old with a view to him organising for other persons to join him in a venture designed to steal from a safe at an address in Yallourn North in a garage at that premises, which was detached from the residence.

5The persons he recruited to assist in this venture were 15 years of age.  You were involved in the planning.  The planning did not involve them entering the dwelling or assaulting the owner of the property.

6However, although you provided equipment to enable the team of young people to commit the offence that you had planned, and drove them to the vicinity of the premises the subject of the burglary, you did not participate in the offending yourself.  Nor did you contemplate that they would step outside the plan, enter the dwelling of the victim and assault him, both by punching him a number of times, and threatening him with a weapon.   

7The burglary was unsuccessful and you were apprehended and charged with the offence.  Your phone revealed evidence that supported the case of the prosecution.  The prosecution also relied upon a victim impact statement.  Your counsel challenged the relevance of that statement.  I formed the view that, although much of it was irrelevant because it was directed at the effects of the conduct of your co-offenders who stepped outside the confines of your original agreement and entered his dwelling and assaulted him, there were parts of it that did have some relevance to the effects of the overall plan.  I have taken it into account to the extent that it seems to me to be relevant to the sentencing exercise. 

8Your counsel provided me with an outline of matters in mitigation dated 15 February 2024.  That is Exhibit 1.  He also provided me with a letter from your partner of some two and a half years (Exhibit 2), which sets out the history of your relationship, your development into a partner of value in that relationship and your development into a person who is holding down a responsible and fulfilling job.

9It seems to me that her analysis of your conduct over the last two and a half years in which you have been engaged in the relationship with her suggests that you have an intent to put criminal conduct behind you, and to lead a law-abiding and fulfilling life.

10Exhibit 3 is a letter from Central Clinic in the Latrobe Valley dated 2 March 2016.  It refers to a diagnosis of Asperger's Syndrome and ADHD, which were then being managed by a paediatrician.  Exhibit 4 is a letter from an organisation called Alternaleaf, which refers to your prescription for the use of medicinal cannabis to assist in the treatment of your various conditions.

11Exhibit 5 is a report from Gina Cidoni, psychologist, dated 7 November 2023, which I found very helpful in that it set out much about your background history and your psychological profile.  You suffer from post-traumatic stress disorder, attention deficit hyperactivity disorder and autism spectrum disorder.

12She notes reported concerns about borderline personality disorder and complex post-traumatic stress disorder, without herself making those diagnoses.  In the report from Forensicare, which was provided as a result of my seeking a suitability report for a community correction order, there is also this passage which says:

'He identified strongly with the diagnosis of borderline personality disorder and complex post-traumatic stress disorder, more so than the diagnoses listed above'.

13That referred to the diagnoses of Ms Cidoni.  So the extent to which those conditions apply is really uncertain I think, but there is no doubt, it seems to me, that you suffer from attention deficit hyperactivity disorder, post-traumatic stress disorder and autism spectrum disorder, and that you are being treated for those conditions.

14The report of Ms Cidoni was relied upon by your counsel as identifying a childhood that was beset with trauma and to some extent neglect, abuse and disruption.  Your parents separated when you were two years of age, and you moved from Canberra to Victoria and lived in various parts of the Gippsland and Latrobe Valley area.  You had disrupted schooling and were the subject of emotional and physical deprivation.

15You completed Year 7 at school, and left school when you were in Year 10.  Cognitive testing at one point indicated a full-scale IQ of 133.  Ms Cidoni opined that you were of above average intelligence.

16You started work at 14 and you were involved in a relationship which itself was somewhat abusive prior to the offending conduct.  You suffer from arthritis and you have experienced industrial deafness.  You have also experienced heart complications such as tachycardia, and have been involved in a number of motor vehicle accidents during your lifetime.

17You have engaged in counselling since the age of 10 through Headspace.  Your counsel has relied upon the history that I have briefly outlined in support of the submission that I should apply the principles arising from the well-known case of Bugmy.  It is always difficult in considering such a submission to identify the extent to which the deprivation through childhood has met the criteria referred to in that authority and subsequent authorities.  However, it seems to me that your background is so attended by deprivation that it does meet those criteria, so as to reduce your moral culpability for your offending in a general sense.

18However, offences of this kind are very serious.  Ordinarily they attract a term of imprisonment despite the application of those principles.  Your counsel also relied upon the diagnoses of the mental impairments in support of the submission that the well-known Verdins principles applied in reduction of your moral culpability and in reduction of the need for the application of the principle of general deterrence.  He also submitted that they would make such time as you may be required to serve in prison significantly more burdensome, and that there was a serious risk of those conditions being exacerbated by a term of imprisonment.

19I have come to the conclusion that the delay in the conclusion of these proceedings against you, arising as they did in late 2019, and the absence of any convictions for criminal offending since that time, other than for the offending that occurred prior to this offending conduct, your rehabilitation during the intervening period and the prospects of your continued rehabilitation assisted significantly by the stable relationship that you are presently in, militates strongly against a term of imprisonment.

20Indeed your youth at the time, coupled with your mental impairments, are such that it would be a very significant detrimental step now, more than three and a quarter years down the track from this offending, to send you to prison.  Your counsel has urged me not to.

21Mr Devlin points to the need for just punishment and for application of the principle of general deterrence in cases of aggravated burglary generally, whilst acknowledging that you did not enter the dwelling house, nor did you plan for others to enter the dwelling house.  Therefore he acknowledged that your offending was less serious than that of the co-offenders, all of whom were ultimately dealt with for offences including aggravated home invasion and various degrees of assault upon the victim.

22Your co-offenders were considerably younger than you: in the case of the person you originally approached, some six years at the time of the offending; and in the case of the others, some seven years.  All but one of those who participated was dealt with by the Children's Court.  The person you originally approached and who recruited the other co-accused, received a sentence without conviction of a 12-month good behaviour bond, and a fine of $100.

23Another, who was 15 at the time of the offending, who was also charged with aggravated home invasion and common law assault, received a sentence without conviction of a 12-month good behaviour bond.  The third, who pleaded guilty to aggravated home invasion, a charge of recklessly causing injury and a charge of theft, was dealt with in the Children's Court without conviction to six months' probation.

24Your counsel correctly acknowledged that the sentencing regime in the Children's Court is very different from that which applies in this court, and they were below the age of 18.  You were 22 at the time of the offending.  Therefore strict parity cannot be applied.

25However, I accept his submission that nevertheless those sentences are to be taken into account and even though strict parity cannot be achieved, and should not be achieved, given the age difference and the different sentencing regime.  Nevertheless they are matters that need to be taken into account in determining an appropriate sentence in your case.

26I accept that submission and I do not understand Mr Devlin to have sought to oppose that approach.  I can only regard your prospects of continued rehabilitation as good to excellent.  You seem to have turned over a new leaf, to have put behind you the conduct that you engaged in in relation to this matter and the previous matter for which you also appeared.

27You have indeed put that phase of your life behind you and emerged a productive and responsible partner, citizen and employee.  I agreed to have you assessed for your suitability for a community correction order.  You have been assessed and you have been found suitable.  The recommendation of Corrections is that you do not be subject to supervision.

28You are suitable to be subject to a community work condition and a treatment and rehabilitation condition for your mental health issues, and for programs to reduce reoffending.  I propose to make that order subject to your consent.

29Before I make the order I must explain the order to you.  The order that I propose would be for a period of 18 months.  It would commence today, and would have the conditions that apply to all community correction orders.  I will go through those conditions now:

·     you must not commit another offence for which you could be imprisoned during the time the order is in force; 

·     you must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations, which deal with matters such as not turning up to community work under the influence of drink or drugs, and that kind of thing;

·     you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate; 

·     you must report to the Community Corrections Centre at Pakenham Community Corrections Services, 12/825 Princes Highway, Pakenham within two clear working days after the commencement of the order;

·     you must let a community corrections officer know within two clear working days of you changing your address or job; 

·     you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and

·     you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.

30In addition the following conditions will apply:

·     you must perform 250 hours of unpaid community work;

That is the penal aspect of this order, and is designed to punish you - it is designed to denounce your conduct, to send a message to others who may be inclined to engage in conduct of a similar kind, and to deter you from further conduct of that kind.  That will have to be completed within the period of 18 months, as directed by the regional manager.

I order that 125 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  So there is an incentive for you to engage meaningfully with the rehabilitation services that will be provided for you under the terms of the order.  Every hour that you complete can be offset against the obligation to complete the 250 hours, up to 125 hours, so then 125 hours will have to be completed as community work.  The other 125 hours can be completed by satisfactorily undertaking the rehabilitation services that will be the subject of the order.

If you fail to comply with this order the Secretary of the Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.

·     you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager; and

·     you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. 

31You should be aware, and I have no doubt your counsel has spoken to you about this, that if you do breach the order by committing a further offence punishable by imprisonment, then you are likely to be brought back before this court, probably before me, and one of the options open to me would be to discharge the order and re-sentence you for these offences.

32The likelihood is that you would leave the court with no realistic option other than to impose a term of imprisonment because this kind of offending richly deserves a term of imprisonment.  So there is a significant incentive for you to avoid committing any further offences punishable by imprisonment during the period that the order is in force.

33It is like a suspended sentence hanging over your head in that regard. 

34In addition, by breaching the order in that way, or by simply not complying with the terms of the order, you run the risk of breach proceedings being brought by Corrections.  You could be sentenced for up to three months' imprisonment for just breaching the other terms of the order.

35So there is a significant incentive for you to comply with the order.  Do not think that it will not be a nuisance, it will.  It will be disruptive to some extent in your life.  You will have to make a commitment to comply with the terms of the order, to turn up as required, and not to make lame excuses for not doing so, because lame excuses ultimately will not be accepted.

36It is up to you to determine whether you are prepared to comply with the order. Firstly, do you understand the order as I have explained it to you?

37OFFENDER:  Yes, Your Honour, I do.

38HIS HONOUR:  Are you willing to comply with the terms of that order?

39OFFENDER:  Yes, Your Honour.

40HIS HONOUR:  In a moment I am going to be asking you to sign it.  I will proceed now therefore to sentence.  For each of the offences of recruiting a child to engage in a criminal act and aggravated burglary, you are convicted and sentenced to a community correction order in the terms that I have outlined for a period of 18 months.

41I also make a disposal order in the terms of the draft provided by the prosecution and I think there is no objection to that, is there, Mr Dogger?

42MR DOGGER:  No, Your Honour.

43HIS HONOUR:  Are there any other orders that I need make?  I gather there is a related summary offence, is that right, that is on file and that you are withdrawing it?

44MR DEVLIN:  The prosecution withdraws that.

45HIS HONOUR:  Would you, Mr Dogger, approach your client with my associate, and ensure that he understands what he is being asked to sign?

46MR DOGGER:  Of course.

47HIS HONOUR:  And supervise the signature of the order, and then I can countersign it and it will be in force.

48MR DOGGER:  Indeed, Your Honour, I will do that.

49HIS HONOUR:  You are going to be required to report to Pakenham Community Corrections Services by close of business on Friday of this week.  Do you follow that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  Thank you both.

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