Director of Public Prosecutions v Ford-McRorie

[2021] VCC 468

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00988

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSIE FORD-MCRORIE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2021
DATE OF SENTENCE:	22 April 2021
CASE MAY BE CITED AS:	DPP v Ford-McRorie
MEDIUM NEUTRAL CITATION:	[2021] VCC 468

REASONS FOR SENTENCE

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Subject:  Criminal law

Catchwords:  Aggravated burglary; damaging property

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Azzopardi, Baltatzis and Gabriel [2011] 35 VR 43; R v Hogarth [2012] VSCA 302; DPP v Meyers [2014] 44 VR 486

Sentence:Total effective sentence of 8 months’ imprisonment; Two year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Clancy Solicitors

HER HONOUR:

1Jessie Ford-McRorie, you have pleaded guilty on indictment to charges of aggravated burglary and damaging property committed on 1 May 2020 in Wodonga.  You have also entered a plea of guilty to a summary offence of committing an indictable offence whilst on bail.

2Your pleas were entered after a sentence indication, a process which permits a judicial officer to give a defendant a general indication of the sentence that would likely be imposed if the defendant pleaded guilty at that stage of the proceedings. This is a process which can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or otherwise electing to proceed to trial. 

3The indication given by me on 16 April 2021 was that I would not impose a sentence of imprisonment that commences immediately from the time of your plea and sentence occurring, which is as it turns out is today. This was taking into account a range of matters that had been raised in both oral and written submissions, including the nature of other plea material that would be available.  I was certainly aware that you had considerable presentence detention.

4Since the giving of that sentence indication you have been arraigned and entered pleas of guilty to the charges on the indictment and to the summary offence to which I have just referred.

5In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed.  The offence of aggravated burglary carries the maximum penalty of 25 years imprisonment.  The offence of damaging property carries a maximum penalty of ten years imprisonment and the summary offence carries a maximum penalty of three months imprisonment. These maximum penalties reflect the seriousness with which Parliament regards those offences. 

6The circumstances with your offending were set out in a document entitled 'Trial Opening' dated 24 March 2021.  The document was relied on for the purposes of your sentence indication and your plea hearing and represents an acceptance by you of all the elements of the offences with which you are charged to which you have now pleaded and the factual basis on which I am to sentence.

7That document tells me that at the time of the offending you were 19 years of age, unemployed and living with your father. 

8You attended an address in McEwan Crescent, Wodonga, at around midday on 1 May 2020 having been driven there by your father. The residence was occupied at that time by four other persons.  One of those occupants, Nadia Haywood, was the sister of a woman who you had been dating, or at least that was my understanding.

9Connor Mather was in the front yard of the residence when he saw a car pull up and you get out.  Stacey Evans was in the lounge room and made the same observations.  Shortly afterwards you entered the house, walking through an unlocked front door and yelled, 'Where's Nay?' said to be a reference to Nadia Haywood.

10Stacey Evans told you to leave, as did another occupant, Mark Noonan.  You did exit through the front door at which time your father got out of the vehicle and said, 'Don't worry, he's with me'.  You were again asked to leave by Stacey Evans.

11You and your father got back into the vehicle and began to leave.  That should have been the end of the matter.  Instead you got out of the car, pushed over a wheelie bin and came back to the front door.  You were again asked to leave by Stacey Evans.  The front door and the security door were then locked and blinds were pulled down. There was every indication that you were not welcome yet you started kicking and banging on the door yelling, 'Let me in', and, 'Nadia, I want to talk to you'. 

12You then smashed the lower window pane of the front lounge window and crawled through the broken window into the lounge room. This act constitutes the allegation of both damaging property and the aggravated burglary.  Observationally the criminal damage was relatively low level and was, in effect, used to then execute your entry.

13The four occupants of the premises all retreated into a bedroom for safety from you, taking their pets with them.  Mark Noonan called 000 for police assistance.  You tried to force the bedroom door open yelling, 'I want to get to Mark’ and ‘Your cat's outside, I'm going to kill it’ and ‘Tell me to fuck off again and see what happens.' Of course the aggravated burglary was complete by this time but your actions inside the premises inform the relevant intention which is particularised as an intention to assault.

14Nadia Haywood then asked you to stop.  At that point you walked out the front door and around to the back and tried to open the rear door, ripping off the handle of the security screen which also forms part of the damage property charge. You then left the property on foot. 

15You were arrested by police the following day on 2 May as a result of handing yourself in to the Wodonga police station.  In a record of interview held with police on that same day you denied the offending.

16I have referred to the maximum penalties attached to the offences to which you have entered your pleas of guilty.  There is still a need within those thresholds to assess the objective gravity of the offending.  I have already commented that I see the criminal damage at the lower end.

17In terms of the aggravated burglary it is trite to say that it is a serious offence. 

18In DPP v Meyers the court referred to Hogarth and said that:

'Hogarth established that current sentencing practices for serious forms of aggravated burglary need to change as they did not reflect the objective seriousness of such offending.  Aggravated burglaries which involve confrontation and violence or threats of violence should be viewed very seriously whether the target of the attack is a former domestic partner or a person against whom such other grievance is held.'

19Further, the decision of Meyers referred to determining the appropriate sentence for an offence of aggravated burglary through an assessment of the seriousness of the offence and included a number of non-exhaustive considerations as being relevant to such an assessment.

20In terms of this aggravated burglary, you forced entry into the victim's residence under obvious resistance in circumstances which were both violent and confrontational.  You threatened to hurt pets which would strike fear into the heart of any pet owner and is particularly cruel. It has also occurred in a private residence in which Ms Haywood and her companions were entitled to feel safe and at ease. 

21I do accept, however, that your offending was relatively spontaneous, it occurred during daylight hours, and there is no suggestion of the use of any weapon. I accept the submissions, in effect made by both parties, that for an offence of aggravated burglary it is towards the lower end of the scale for an offence of its type - such that such descriptions assist.

22To your credit you have taken responsibility for this offending with your plea of guilty.  I do take into account the utilitarian value of your plea.  It has saved the court the time and expense of contested proceedings and, more importantly, the need for witnesses to attend and relive what may well have been traumatic events.  I note no victim impact statements have been filed. In addition, your plea has occurred during the court's response to the COVID-19 pandemic and has additional utilitarian value in the finality it gives to the parties, to the witnesses and, indeed, yourself. 

23For one so young you have an unfortunate admitted prior criminal history.

24You have four appearances in the Wodonga Children's Court in 2018 which involve a wide range of offending behaviour including making threats to kill, damaging property, breaches of intervention orders, recklessly causing injury, acting to the prejudice of the good order of a gaol, persistent contravention of family violence intervention order, assault, resist and assault emergency workers and breaches of court orders. Supervisory orders under the Children's Court domain and even brief periods of detention do not appear to either have deterred you or, alternatively, to have assisted you. 

25You have only one appearance in the adult jurisdiction.  On
28 August 2019 you appeared in the Wodonga Magistrates' Court in relation to charges of contravening a family violence intervention order, unlawful assault, commit indictable offences whilst on bail, two charges of damaging property, theft of a motor vehicle, fail to stop a vehicle on police direction and other minor driving offences. At that time you were convicted and placed on a community corrections order for a period of 18 months with treatment conditions. 

26You were subject to this community corrections order at the time of your offending on 1 May 2020 which is an aggravated feature to your offending.

27You are not to be punished for this criminal history a second time but it is relevant to the weight that I must attach in the sentencing exercise to specific deterrence - that is putting you off further offending - denunciation and, indeed, the need to protect the community from you and from your actions. It is also capable of informing your moral culpability.  This history could indicate that you have very real difficulty in regulating your own behaviour, controlling your emotions and complying with and respecting court orders.

28Tendered on your behalf was a ‘Contravention of Community Correction Order by Conditions’ report dated 20 April 2020.  That report indicates that in relation to the corrections order on which you were placed on 28 August 2019 you had real difficulty engaging and did not appear to take that order seriously.  That contravention report did recommend however that you be given a further opportunity to engage.

29I turn now to your personal circumstances.  I see that there is some explanation, and explanation only, not excuse, for your offending in those personal circumstances and, more particularly, the psychological assessment of you authored by Ms Sandra Cokorilo to which I will shortly refer.

30You are the eldest of three siblings.  You have two younger sisters, Tanisha, aged around 18 years, and Mariah, aged nine.  Your parents separated when you were approximately 12 years of age and you have been living between your father's residence in Wodonga and your mother's home in Melbourne.

31You report witnessing family violence between your parents prior to their separation and police were apparently required to attend on a number of occasions. 

32Your mother re-partnered approximately eight years ago and you report a fairly positive relationship with your stepfather, John.  You also enjoy a close relationship with Mariah and I am told that you hope to repair a fractured relationship with your sister, Tanisha.

33When aged approximately eight years you experienced a particularly traumatic event when your family home was broken into and you witnessed your mother being strangled and your father having to fight the assailants from your unfortunate vantage point of hiding in a cupboard with your younger sister. I have little doubt that this experience would have been terrifying and would have left you feeling helpless despite your tender years.  Understandably this appears to be an event which has stayed with you -  if only it had been in the forefront of your mind on 1 May 2020.

34You began to have difficulties with your behaviour and concentration at school shortly after being exposed to the home invasion.  Around this time you were also diagnosed with attention deficit hyperactivity disorder.  You managed to complete a Year 10 education but repeated periods in youth justice facilities did interrupt your schooling.

35You managed to have some employment in roof plumbing, plastering, painting and delivery type positions. 

36You had one long term relationship of two to three years duration with Riverina which ended in February of 2020.

37You also have an unenviable history for one so young with drug use and abuse commencing the use of cannabis from the age of 12 years, progressing to methylamphetamine by the age of 16 with increased drug usage after the demise of your relationship in February of 2020. You were regularly using ice, MDMA and cocaine at the time of your offending in May of 2020. 

38Whilst not doing her report any justice, in very short compass a report tendered on your behalf authored by Ms Cokorilo, psychologist, dated 14 September 2020, does not dispute a previous diagnosis when you were aged around seven or eight years of attention deficit hyperactivity disorder. Further, she reports that since being on remand from May of 2020, diagnoses of schizophrenia and bipolar disorder identified when you were in youth detention previously have also been confirmed.  This is perhaps something you should further explore upon your release. Her assessment also indicates clinically significant post-traumatic stress disorder symptoms related to the home invasion in your younger years and, not surprisingly, she identifies stimulant use disorder. 

39In addition, Ms Cokorilo opines that you present with low intelligence and recommends further cognitive assessment to investigate the presence of either an intellectual disability or an acquired brain injury.

40From her report it would appear there would be a number of factors which made some contribution to your behaviour and functioning at the time of your offending such as would be available to reduce your moral culpability. She was not of the belief that you actually had an entrenched criminal belief system or orientation.  By the same token, Ms Cokorilo raises concerns about risk and her expert opinion is that you present with a high risk of reoffending - particularly if still using drugs.  Given your history this is perhaps obvious.

41Ms Cokorilo raises genuine concerns given your complex psychological picture, young age and low level of functioning as to your time in custody being more burdensome than it would be for someone without that set of circumstances. She raises obvious concern in that context about your susceptibility to the negative influence of more seasoned offenders.  These factors are all relevant to the sentencing exercise.  I have taken the contents of her unchallenged report into account.

42In a more positive light, otherwise, Ms Cokorilo's report refers to your burgeoning insight in relation to the connection between your drug use and offending behaviour, your willingness and desire to engage in programs and that the penny, in effect ,appears to finally be dropping. To reduce your risk of future offending you do need to, quite frankly, avoid drug use.  You need to be prepared to be accepting of treatment to deal with your range of underlying conditions or you will simply find yourself entrenched in the criminal justice system.

43Whilst I have obvious concerns about your future prospects, her assessment can be used to guide your rehabilitation – you, as well as those responsible for managing your rehabilitation.  With family supports, the sanction of the time you have served to date, and your willingness to engage in programs to assist you,  your rehabilitation prospects should improve.

44Of obvious relevance to the sentencing exercise is your youth.  In Azzopardi, Baltatzis and Gabriel [2011] 35 VR 43 Justice of Appeal Redlich made clear the reasons to prioritise youth as a sentencing consideration. These include that young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct; courts recognise the increased potential for young offenders to be rehabilitated, which is obviously in the public interest; and incarceration can in fact impair, rather than enhance, a young offender's prospects of rehabilitation.

45I accept that these considerations all have application to your case. 

46I was told as part of your sentence indication hearing that you had matters pending in the Magistrates' Court in Wodonga described by your counsel as “the same sort of offending, silly driving offending” and “nuisance offending” which did include a short police pursuit. I was informed that a magistrate had given a sentence indication of six months imprisonment in relation to these outstanding matters. 

47Since the giving of my sentence indication on 16 April 2021 you have in fact appeared in the Wodonga Magistrates' Court in relation to a consolidation of offending and you have received a total effective sentence of four months of imprisonment of which that court declared 120 days as presentence detention. Close examination of the materials now provided indicate the following matters of relevance. 

48Firstly, you were on bail on 1 May 2020 at the time you committed the charges of aggravated burglary and criminal damage.  This is in fact made clear by the fact that you were charged with committing an indictable offence whilst on bail.

49Secondly, a substantial portion of the matters dealt with in the Wodonga Magistrates' Court on 20 April 2021 was a resentencing exercise in relation to the community corrections order which you had received on
28 August 2019. Most of that offending could be accurately described as nuisance offending and I was well aware of those matters and the response by Corrections to your lack of order compliance. 

50Finally, reoffending whilst on that order and dealt with by the Wodonga Magistrates' Court all occurred in effect on the one day, that being 28 April 2020, bar the theft of your stepfather's car on 1 April 2020. This was obviously in close proximity to your offending on 1 May 2020 and your behaviour of 28 April has been sanctioned by the penalty imposed by the Magistrates' Court.

51That brings into the reality of your sentencing exercise, the totality principle. This requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending. This has relevance to the charges on the indictment but now relevance to the matters which have just been dealt with in the Magistrates' Court on 20 April. 

52Factors taken into account by me at your sentence indication did include your guilty plea, the additional utility of that plea during the court's response to the COVID-19 pandemic, your youth, family support through your mother, and the contents of the psychological report. Those considerations remain just as valid despite the additional information between the sentence indication and your formal plea hearing today. 

53I accept that the 356 days that you have done on remand in the adult system are well capable of providing you with an experience from which you can learn and to point you in a more positive future direction. You have been drug free for that time which is the most extensive period in recent history.  This has also been your first exposure to the adult system and represents the longest period during which you have been detained in any form. For a considerable period of your remand you were likely to be subject to the Corrections' response to the COVID-19 pandemic which would have required you to quarantine on reception for a period of 14 days, meant you had less access to movement, programs or courses, and visits would have occurred remotely rather than in person. This is relevant also to the consideration of specific deterrence appreciating the charges, by their very nature, also require consideration of general deterrence, denunciation and protection of the community to which I have already made some reference.

54I am told that you are able to return to live with your mother upon your release.  In an unfortunate turn of events her partner and your stepfather has suffered a stroke and she may in fact have to rely on you more heavily than you will have to rely on her. She certainly does not need any added stress.  I accept that this gives you added impetus over and above your period of remand to comply with any order this court chooses to make in its consideration of all relevant sentencing considerations.

55In effect the submission made on your behalf is that the court should consider imposing a sentence that is referred to as a combination sentence, that is a period of imprisonment in combination with a community corrections order. The Crown did not quibble with this submission.  Accordingly I have had you assessed as your suitability for a community corrections order. 

56An assessment outcome report dated 19 April 2021 assesses you as presenting with a high risk of reoffending. The author of the report refers to your expressed remorse during the assessment and your intention to live with your mother and change your peer group.  In light of the protective factors identified, particularly the support of your family and your express willingness to engage with therapeutic services, you are assessed as suitable for a community corrections order.

57The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I am required to have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and those of your victims.

58I must also balance the interest of the community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as is possible that offenders are rehabilitated and reintegrated into society.

59I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and, of course, the principle of totality to which I have referred and the principle of proportionality.

60On the summary charge of commit an indictable offence whilst on bail you are convicted and sentenced to one month's imprisonment given your relevant history. 

61For the charges on the indictment I intend to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are a part of a series, of offences of same or similar character bearing in mind it was the criminal damage which largely affected your entry encompassing the charge of aggravated burglary.

62On those matters you are convicted and sentenced to eight months' imprisonment which I reckon as having already been served.  This term of imprisonment is in combination with a community corrections order of two years, Mr Forde-McRorie.

63The corrections order will include the following conditions.  Firstly, supervision by the Office of Corrections.  Secondly, treatment targeting your drug use.  Thirdly, mental health assistance.  Now that you are in the cold sober light of day it is the best time to assess the needs that you might have in relation to your mental health. Fourthly, judicial monitoring.  I will be seeing you regularly to get an update as to how Corrections are going in terms of implementing the services I am asking them to implement and also so that I can get update as to how you are going with complying with that order. I see genuine merit in the focus of this order being therapeutic given the punishment that has already been undertaken.  With that in mind you are to complete 150 hours of community work of which 75 will be offset against the therapeutic component, that is more treatment, less community work.

64Punishment comes as I have said from the term of imprisonment in combination with the fact that this corrections order will be hanging over your head for two years. 

65Courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in what I describe as a coherent and balanced way, in preference to the option of imprisonment which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.

66I do see the path of rehabilitation as a difficult one for you, but it seems your ability to access appropriate services now has a role to play.  A corrections order can be punitive, can achieve deterrence and may be suitable in cases of relatively serious offences which might otherwise have attracted a longer term of imprisonment.

67In addition to the conditions that I have imposed there are standard conditions.  The first and foremost of those is you must not commit any other offences during the 24 month period which could be punished by imprisonment. You need to report within two working days of your release to the nearest Corrections office.  Why not knock that one off today if you can?  I understand the Corrections office is in Melton.  You are required to advise your supervising Corrections officer of any change of address of where you are living or working and need to do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer.  You cannot leave the State of Victoria without their prior permission.

68In my view this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available.  You should be aware that the order can be breached if you do not comply with it in terms of the conditions. It can be breached if you reoffend whilst it is in place.  If you do you will come back before me for breaking the order and I may have to resentence you on the original charges as well as a charge for breaking the order. 

69I cannot place you on that corrections order, Mr Forde-McRorie, unless you consent to it.  Do you wish to speak to Mr Kantor about that?

70Sorry, you were on mute.  Can you repeat that?

71OFFENDER:  Yes, I consent to it and I have been explained it and I understand it.

72HER HONOUR: Thank you. Additionally, s.6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty but been found guilty.  If not for your pleas of guilty you would have been sentenced to two years and four months with a minimum of
18 months before being eligible for parole.

73Is there anything I have missed, Ms Foot, from your perspective?

74MS FOOT:  No, Your Honour.

75HER HONOUR:  Mr Kantor?

76MR KANTOR:  Pre-sentence detention?

77HER HONOUR:  I declared the eight months as served.  I may or may not need to restate that in days but it is my intention that he be in a position to be released immediately.

78I understand he has done 356 days and I understand four months have been taken into account by the Magistrates' in effect so I intend to impose the eight months as announced.  Anything else, Mr Kantor?

79MR KANTOR:  No, Your Honour.

80HER HONOUR:  You have indicated your consent in effect over the visual link, Mr Forde-McRorie, and that is sufficient for you to in effect be now on the corrections order.  It may well be that documents will be forwarded to the Corrections office.

81They will be forwarded to the Corrections office so you need to be showing up there within the next two days.

82OFFENDER:  Yes.

83HER HONOUR:  I need to fix a date for judicial monitoring.  I am going to keep a relatively tight rein on you so I want to see you in a couple of months.  I will just find a date.  They tend to be earlyish in the morning, Mr Ford-McRorie, around 9.30, 10 o'clock.

84OFFENDER:   Yes.

85HER HONOUR:  At this stage as far as I am concerned you can do it remotely so if you have got access to a computer or a phone and you can connect in, I will permit you to do that, or you can attend at the Corrections office and appear from the Corrections office.

86OFFENDER:  Yes.

87HER HONOUR:  So 9.30 on 24 June, I will get an update onto how you are going.

88OFFENDER:  Yes.

89HER HONOUR:  Do not make the mistake of using immediately upon release.  Do not make the mistake of hooking up with buddies immediately upon release, focus on yourself and your family.

90OFFENDER:  Yes.

91HER HONOUR:  Thank you to each of your for assistance.  You can - obviously I will give you the opportunity, Mr Kantor, otherwise I will stand down now until midday.

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