Director of Public Prosecutions v Fitzgerald

[2019] VCC 352

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02169

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE FITZGERALD

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2019
DATE OF SENTENCE:	21 March 2019
CASE MAY BE CITED AS:	DPP v Fitzgerald
MEDIUM NEUTRAL CITATION:	[2019] VCC 352

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Making a threat to kill – stalking – home invasion – common assault – criminal damage – theft – youthful offender – no relevant adult prior convictions – aggregate sentence – combination sentence

Legislation Cited:                 Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Sentence:  12 month’s imprisonment and 2 year Community Correction
  Order

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms K. Hamill (Plea) Ms S. Gleisner (Sentence)	Office of Public Prosecutions
For the Accused	Mr B. Johnston (Plea) Mr J. Dalziel (Sentence)	Ellinghaus & Lindner

HER HONOUR:

1       Luke Fitzgerald, you have pleaded guilty to one charge of making a threat to kill, which carries a maximum penalty of 10 years’ imprisonment; one charge of stalking, for which the maximum penalty is 10 years’ imprisonment; one charge of home invasion, for which the maximum penalty is 25 years’ imprisonment; one charge of common assault, for which the maximum penalty is five years’ imprisonment; one charge of criminal damage, for which the maximum penalty is ten years’ imprisonment; and one charge of theft, for which the maximum penalty is ten years’ imprisonment.

Circumstances of offending

2       The circumstances of your offending are set out in the agreed prosecution opening on the plea, and I sentence you on the basis of the facts set out in that document. Those facts may be summarised as follows.

3       At the time of offending you were 24 years old.  On 13 July 2018, you were at a pub where your ex-girlfriend, Madison Westcott, was working. Your relationship with her had ended a week earlier. While she left her phone unattended, you looked through it and discovered text messages between her and your associate, Joshua O’Connell.  You formed the view that the two were involved.  You accused her of sleeping with him and said that when you saw Mr O’Connell, you would bash him. After you left, Ms Westcott messaged Mr O’Connell to warn him. At around the same time, you sent Mr O’Connell a series of threatening text messages and then left a number of threatening voicemail messages.  These messages are the subject of Charges 1 and 2.  Mr O’Connell informed Ms Westcott that he was leaving his home to stay somewhere else.  He told his housemate, Cheyenne Harnett, that he was “having issues with someone”, took his pets and went to stay the night with family.

4       That evening, you contacted your co-accused, Scott Larkins, and informed him of your suspicions. The two of you went to another bar, where a local, Leigh Piggott, noticed that Mr Larkins was firing you up. Mr Piggott tried to calm you down, however the two of you took a taxi to Mr O’Connell’s address. You were wearing a hoodie and covered your head.

5       Ms Harnett had fallen asleep on the couch in the living room and woke at around 3:00 am to find you both in the house. You had gained entry to the house by removing the flyscreen from a bedroom window. This is the subject of Charge 3. You have then let Mr Larkins in through the front door.  Once inside, you went to a spare room where you knew Mr O’Connell kept his music equipment. You took his laptop computer and a bass guitar belonging to his old housemate.

6       Ms Harnett awoke to see Mr Larkins watching her from the upper level of the house.  She went to the spare room and saw you.  You placed her in fear by confronting her in her own home, and this conduct is the subject of Charge 4.  You told her to “go back to bed, sweetheart”.  Mr Larkins came close to her and she felt intimidated. He followed her until she went into her bedroom and he then slammed the door shut. A short time later she came out to challenge you both. She took her phone from the lounge and went to the spare room to call for help. She saw Mr Larkins leave Mr O’Connell’s bedroom holding an Xbox.  She told him to give it back, snatched it from him and put it on the ground.  He turned towards her with a knife, pointed it close to her face, and walked her back to her room, slamming the door behind her. It was not alleged that you were aware that Mr Larkins was armed.  Ms Harnett then heard banging and some glass breaking. You had punched a hole in a plaster wall and thrown a glass. This conduct is the subject of Charge 5. 

7       The two of you then left via the front door, taking the laptop and guitar with you.  This is the subject of Charge 6.  You left the items in bushes a few minutes later. 

8       Ms Harnett called police and you were both tracked down by the canine unit.  When apprehended, you gave a false account to police of your whereabouts that evening.

Procedural history

9       You were both arrested on 19 July 2018. You were interviewed on the same day, and made full admissions.  You told police you were pretty drunk and upset on the night, and that your offending was a stupid choice. 

10     Mr Larkins’ matter has not resolved, and has been listed for trial in December this year. 

11     Your matter resolved at committal case conference stage on 23 October 2018.  Up until, but not including today, you have spent 245 days in custody.

Personal circumstances

12     I turn to your personal circumstances, which are canvassed in the psychological reports of Gina Cidoni dated 18 August 2018 and 6 February 2019.  You are 24 years old and single.  Your parents separated amicably when you were 13 years old. You and your brothers played up a lot. You had a number of behavioural issues at school, and had frequent appearances in the criminal division of the Children's Court for offences including marking graffiti, criminal damage, reckless cause injury, theft and assault, which were committed in the company of peers and your older brothers. You started drinking alcohol at age 13.  Nevertheless, you completed Year 10 at a community school and then worked full-time, more than 40 hours a week for four years as an apprentice chef, without further court appearances, until December 2016, when you first had a conviction recorded against you and were fined in respect of offences including criminal damage, theft, throwing stones at property, and entering railway premises without lawful excuse. The 2016 offending occurred in the company of your older brother when you were both intoxicated.  By age 18 you were drinking up to 20 beers a day, largely in connection with your occupation and workplace, but otherwise you have no other drug use or gambling problems.  You have almost completed your apprenticeship as a chef. At the time of offending you were drinking substantial amounts of alcohol daily, due to working in a pub kitchen and socialising there after work.

13     When first assessed by Ms Cidoni, you presented to her as cooperative, remorseful and ashamed of your behaviour.  On testing, she found you to have low average intellectual capacity (with a full-scale IQ of 88), to be suffering from alcohol misuse disorder with resulting low coping resources, ongoing vulnerability and moderately depressed mood. She considered that alcohol abuse played a role in your relationship problems and in your ability to cope when the relationship ended, resulting in a loss of “control over himself with demonstration of very poor judgment and lack of clear thinking”.  She concluded that you are unlikely to reoffend if you abstain from alcohol use, that your time in prison so far has made you want to abstain, and that you have been engaging in treatment.

14     In her updated report, Ms Cidoni noted that you were still feeling very remorseful and ashamed about the current offending, and acknowledged how frightening the incident would have been to the victim.  She noted that you have support from your family. You told her you would never drink again but would need the ongoing support of Alcoholics Anonymous (‘AA’), which you have been attending regularly. You are reluctant to work again in a pub kitchen due to the exposure to alcohol, and may consider alternative work. 

Plea submissions

15     According to your counsel, the context of your offending was the breakdown of your two-year-long relationship with your ex-girlfriend, to whom you were very attached. You had been drinking too much, and the relationship deteriorated after this. You had been drinking heavily on the night, and were upset by the text messages you found on her phone. Since your offending, you have had no contact with her and acknowledge that the relationship is over.

16     Your counsel conceded that your offending constitutes serious examples of what are serious offences, and particularly that the home invasion would have been frightening for Ms Harnett. However, it was emphasised that it was not alleged that you knew that Mr Larkins had a knife with him, nor that you were involved in the assault upon Ms Harnett.

17     In relation to your prior criminal history, it was emphasised that most of the offending occurred when you were a child. Importantly, that offending was followed by a four year period when you were working full-time and did not offend.  Your only matter in the criminal jurisdiction, which occurred when you were intoxicated, was for minor offending, for which you were fined.

18     This is your first time in adult custody, and although you have experienced withdrawal symptoms related to abstinence from alcohol, you have used your time in custody productively, providing clear urine screens and working weekends cooking for prison visitors.  You have attended weekly AA meetings and have commenced the 24 hour drug and alcohol course. As a youthful, slightly built offender, you have found your time in custody frightening, and have witnessed the stabbing of a prisoner in a neighbouring cell.

19     You were living with your mother in Selby at the time of the offending, and were working in a pub kitchen in Mount Dandenong. Both parents are happy to accommodate you upon your release, but you plan to return to live with your mother. You plan either to look for work in a venue that does not serve alcohol, or to work with your brother, who is an arborist.

20     Your counsel tendered a number of documents, including personal references.  Your mother writes that you are a kind, generous person with a great work ethic and a solid reputation as a chef. You developed a problem with alcohol, particularly in your workplace, and were in an emotional crisis after the breakdown of your relationship. You regret your actions, have engaged in regular alcohol counselling, and have the whole family’s support for your rehabilitation.

21     Your former employer, David La Piana, writes that you were respectful, honest and hardworking as a chef, that you have taken full responsibility for your offending, which you regret, and that you were not appropriately supervised to discourage you from drinking at the workplace after finishing your shifts.

22     Your father writes that you were a happy child, that you lost your way for a while after the divorce, but that you got back on track through obtaining your employment first as a kitchen hand, then as apprentice chef.  When you became a heavy drinker, you socialised with the wrong people.  He states that you have expressed remorse, embarrassment, guilt and shame to him for your offending on a number of occasions, that you have reflected on your experience, obtained new skills, and will be better equipped to handle life upon your release.  He states that your whole family, extended family and friends will support you upon your release.

23     Paul Riley, for whom you worked as a fourth year apprentice, writes that you are dependable, kind and well-liked by guests and staff. Although you are an alcoholic, he said he has never seen you act violently. 

24     Nicola Rainey writes that she has known you for 17 years as a polite, gentle and respectful person, and that she will continue to support you in future. 

25     Shane Fitzgerald, your uncle, writes that you are pleasant and respectful with his family and have a good work ethic.

26     Courtney Revere writes that she has known you for about ten years, that you worked very hard for her at the Bell Tavern in Belgrave for five years until 2013; that you were a loving and caring individual to family and friends.  She noted that you developed a drinking problem during the difficult times of your relationship with Ms Westcott, which Ms Revere described as “toxic”. She noted that you are extremely remorseful for your actions.

27     Mark Strahan, the publican at Mount Dandenong Hotel where you worked, writes that you were punctual, well-mannered and well-liked, and did your job to a high level. He would welcome you back as an employee.

28     Peter Wroblewski, area coordinator of AA Prison Recovery Program, writes that you have been attending weekly AA meetings at Marngoneet Correctional Centre since 14 November 2018, and that you are serious about the abstinence based recovery advocated by AA.

29     Finally, there are four certificates of completion of ATLAS programs, as well as a Certificate II in Kitchen Operations.

30     Your counsel relied on your full admissions to police at the time of interview, your early plea of guilty, your expression of remorse to Ms Cidoni and the people who have provided references.  In addition, your counsel noted that this is only your second adult court appearance and that, given your age, rehabilitation is a primary sentencing consideration.  Finally, your counsel submitted that you have excellent prospects of rehabilitation.  In this regard, counsel relied on your excellent employment history; your strong family and community support; minimal prior criminal history as an adult; your remorse and insight; and your engagement in rehabilitative courses and employment whilst in custody.

31     Your counsel conceded that general deterrence looms large as a sentencing factor in this kind of offending, but submitted that the need for specific deterrence is reduced, given the clear demonstration of your rehabilitation while in custody. 

32     Your counsel accepted that there ought to be a degree of cumulation between the charges, but submitted that because each offence arises out of the same course of conduct, there ought to be a large element of concurrency. 

33     It was also submitted that appropriate weight be given to the principle of totality.  In all the circumstances, your counsel submitted that you ought to receive a combination sentence of imprisonment and a Community Correction Order.

Prosecution submissions

34     The prosecution conceded that your single prior offending as an adult is of limited relevance to the current case, and that there was a four year gap in your offending thereafter, but submitted that the offending committed as a child is relevant in assessing specific deterrence and your prospects of rehabilitation.

35     It was noted that there are two pending matters concerning conduct in late 2017, relating to rolling a beer can on to train tracks and assaulting a homeless person, but that these are to be heard as guilty pleas in April 2019.

36     It was submitted that Charges 1 and 2 refer to conduct that occurred some hours earlier than the remaining charged conduct.  It was conceded that your conduct was not well planned; however, it could not be treated as spontaneous in the light of the hours you spent drinking and sending threatening messages before taking a taxi with Mr Larkins to Mr O’Connell’s home. 

37     Although you did not know, when you entered Mr O’Connell’s home in the middle of the night with the intention of confronting or bashing him, that anyone was home, you did not leave immediately once you realised that he was not there, but someone else, the victim, was there.  Instead, you stayed on to steal the guitar and laptop computer.

38     It was submitted that your offending is quite serious, and that just punishment, general and specific deterrence loom large as sentencing considerations.  Given the seriousness of the offence of home invasion, it was submitted that a combination sentence is not sufficient to address the relevant sentencing considerations, and the appropriate disposition is that of the imposition of a term of imprisonment and non-parole period.

Assessment by Corrections Victoria

39     I note that on 12 March 2019 you were assessed as suitable to undergo a Community Correction Order, with conditions including supervision, community work, mental health treatment, alcohol related treatment and rehabilitation, and programs to reduce reoffending. You expressed insight into and remorse for your offending, which was related to your consumption of alcohol and its impact on your thinking and judgment. You expressed an intention to continue attending AA meetings upon release, and a willingness to return to full-time work.

Sentencing considerations

40     In sentencing you, I take into account the principles of denunciation, just punishment, general and specific deterrence. These principles loom particularly large in the case of home invasion, for which Parliament has provided a maximum sentence of 25 years’ imprisonment.  On the other hand, given that you are a youthful offender with no relevant adult prior convictions, appropriate weight must be given to your prospects of rehabilitation.

41     I was taken by both parties to a number of cases. I take those cases into account, but note that the specific circumstances of them differed in many respects from the facts of your offending, and they are, therefore, of limited assistance.

42     I consider that your offending on the afternoon and evening of 13 July 2018 is all to be viewed as one course of conduct, which occurred in a very specific set of circumstances: the recent breakup of your relationship with Ms Westcott, to whom you were attached; your presence at the bar where she worked; your over consumption of alcohol; your mistaken belief that she was having a relationship with Mr O’Connell; and the misfortune of Mr Larkins being with you and encouraging you in your anger towards Mr O’Connell.  Your offending was directed at Mr O’Connell.  When you did not find him at home you ought to have left immediately, but took out your frustration on his property, and by stealing two items from him which you abandoned after leaving his house.  There is no doubt that Ms Harnett would have been frightened by your intrusion into the home she occupied.  However, unlike your co-accused, none of your conduct at the home was directed against her, as all you said to her was, “Go back to bed, sweetheart”.

43     I find that the gravity of this offending overall, and particularly in relation to the offence of home invasion, having regard to the circumstances outlined above, falls at the lower end of the range of seriousness for this kind of offending.

44     I take into account all of the matters relied upon by your counsel in mitigation.  First, you are entitled to a substantial discount for your early plea of guilty, which has saved the community the time and expense associated with a trial, and witnesses the inconvenience of having to give evidence.  In addition, the plea is indicative of remorse.  You have also expressed remorse through your counsel, through Ms Cidoni, and to a number of people who have provided references for you, as outlined above.

45     Secondly, you have no relevant prior convictions as an adult.  Your offending conduct is to be seen as out of character and arising out of specific circumstances already outlined above, in the context of an alcohol abuse problem and the breakdown of a long-term relationship. You are a youthful offender.  Given your excellent work history since leaving school, as well as the insight into your offending shown in custody and your attendance at regular AA meetings, and the support you have from family and friends, I consider that your prospects of rehabilitation are excellent, and that the risk of your reoffending is low.  Rehabilitation in your case is to play a significant role in the sentencing exercise.  I consider, therefore, that specific deterrence has less of a role to play than it otherwise would.  Appropriate weight must still be given to denunciation, just punishment, general deterrence and the principle of totality.

46     As indicated above, I consider it appropriate to treat your offending as one course of conduct.  Accordingly, I propose to impose an aggregate sentence for the totality of your offending.  I consider that in the circumstances of this case, it is appropriate to impose a combination sentence. 

47     Would you please stand.  On Charges 1 to 6, you are convicted and sentenced to an aggregate term of imprisonment of 12 months and a two year Community Correction Order with the following conditions: supervision, mental health treatment; alcohol treatment; offender specific programs, and 100 hours of community work.  I will direct that up to 100 hours of community work can be satisfied by attendance at AA meetings or other counselling sessions.

48     In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders.  These are that you must not commit any other offences during the period of the order being enforced - that is, two years from the date of your release from prison - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Ringwood within two clear working days after your release from prison.  You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring.  Finally, you must obey all lawful instructions from and directions of Community Corrections officers.  Do you understand all the conditions I have imposed and the general terms that apply?

49     OFFENDER:  Yes, I do.

50     Before you consent to the making of such an order, you must understand that if you breach or contravene any condition of the Community Correction Order, except a contravention at the direction of the Secretary, that contravention by you would itself be an offence punishable by three months’ imprisonment.  It also carries with it the prospect that you will be brought back before me and resentenced on the original offending.  Do you consent in these circumstances to the imposition of the Community Corrections Order?

51     OFFENDER:  I do.

52     I declare that you have served, up to but not including today, 245 days of pre-sentence detention, and order that such declaration be entered into the Court’s records and that this period be deducted administratively from the term of imprisonment imposed today.

53 Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have imposed a sentence of three years’ imprisonment with a non-parole period of two years.

54     HER HONOUR:  Are there any other matters?

55     MS GLEISNER:  No, Your Honour.

56     MR DALZIEL:  No, Your Honour.

57     HER HONOUR:  Thank you.  We'll adjourn.  There is another matter to follow.  We'll just print the order for Mr Fitzgerald to sign before we leave.  Thank you.  We'll adjourn and reconvene shortly. 

(Short adjournment.)

58 The prosecution has also sought an order pursuant to s 464ZF of the Crimes Act in relation to the taking of a forensic sample, and you have consented to that order through your counsel.  I will make that order because you have consented to it and because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.

59     In making this order, I need to inform you, Mr Fitzgerald, that I am signing this order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database.  I advise you that if at the time of the request for such a sample is made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand?

60     OFFENDER:  Yes.

61     Thank you, we will adjourn.

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