Director of Public Prosecutions v Franklin

[2023] VCC 2248

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 23-00163

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT FRANKLIN

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023
DATE OF SENTENCE:	29 November 2023
CASE MAY BE CITED AS:	DPP v Franklin
MEDIUM NEUTRAL CITATION:	[2023] VCC 2248

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charges of causing injury intentionally, aggravated burglary, making threat to kill and intentionally damaging property – plea of guilty after sentence indication – prior criminal history – Renzella time – all sentencing purposes engaged – reasonable prospects of rehabilitation – remorse

Cases Cited:Director of Public Prosecutions v Myers [2014] VSCA 314; Worboyes v The Queen [2021] VSCA 169

Sentence:                  6 months’ imprisonment and 18-month community correction order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Stokes	Office of the Public Prosecution
For the Accused	Mr I. Polak	Ann Valos Criminal Law

HIS HONOUR:

Introduction

1On 2 October 2023 I indicated if you, Mr Franklin, pleaded guilty to certain charges you would be sentenced to six months' imprisonment and, subject to a report, to a community correction order of 18 months' duration.  You accepted my indication and the proceeding was adjourned for a plea hearing. 

2You have now pleaded guilty to four charges: causing injury intentionally; aggravated burglary; making a threat to kill and intentionally damaging property. 

3The circumstances of your offending are set out in the document entitled, 'Summary Facts on Plea', which is Exhibit A.

Circumstances

4There are two complainants, Anthony Vecchio and Dallas O'Keefe.  You and Mr O'Keefe were friends.  You were in a relationship with your co-accused, Casey Salmon.  She was living in a bungalow at the rear of the home of
Mr O'Keefe's mother.  O'Keefe and Vecchio were living in the house at that property.

5On about 10 March 2022, O'Keefe told Vecchio and Ms Salmon they could no longer live at the property because his mother was returning from hospital.

6At about 7.30 pm on 23 March 2022, O'Keefe saw you and Salmon at a Ballarat supermarket.  He did not speak to you, but sent an unpleasant text message to you.  The contents of the message appears in paragraph 11 of Exhibit A.

7At about 12.45 am on 24 March 2022, you and Salmon appeared at the front door of the O'Keefe property and were let into the house.  When letting you into the house, O'Keefe did not realise you were armed with a claw hammer and Salmon with a kitchen knife. 

8In the kitchen, an argument occurred.  After Salmon punched O'Keefe to the nose, he ran from the house and called the police.  Vecchio barricaded himself in a bedroom.  After you and Salmon attacked the door, it opened. you put an arm through the opening and struck Vecchio with the hammer to his lower leg about
20 times.  This was painful but caused no other injury.  Putting your arm through the opening of the door is part of Charge 2.  Striking Vecchio is part of
Charge 1.

9While Vecchio was calling Triple 0, he heard you to say, 'Fuckin’ kill you'.  You responded to this threat by saying, 'What are ya gunna kill me for?'  This threat constitutes Charge 3.

10Salmon managed to squeeze herself through the opening and entered the room.  She then stabbed Vecchio to his left arm, causing him a deep cut.  This injury is depicted in two photographs, which were exhibited. 

11In gaining entry to the bedroom, you and Salmon damaged the door.  After leaving the house, you smashed the front windscreen of O'Keefe’s vehicle with the hammer.  These incidents constitute Charge 4.

12You were arrested on 29 March 2022.  When interviewed, you gave ‘no comment’ answers.  The police obtained a personal safety intervention order against you and Salmon.  You have obeyed the conditions of the order. 

Victim impact statements

13There are no victim impact statements.

Criminal History

14Between 14 September 2012 and 2 May 2023, you have appeared in the criminal court on nine occasions and have been found guilty or convicted of
27 charges.  In your last appearance on 2 May 2023, you were sentenced to immediate imprisonment of 30 days.  Years earlier, you had been sentenced to two months' imprisonment but that sentence was wholly suspended.  The vast majority of your offending has been traffic offences, especially driving while suspended or disqualified.

Personal

15You are now 37.  You were born in Wagga Wagga and raised in Ballarat after your parents separated when you were eight.  Your mother is still alive but you have not lived with her for more than 20 years.  Your father is deceased.  You have a brother.  He is a motor mechanic and runs his own business from premises in a suburb of Ballarat.  You assist him in that business and live in a hut at the rear of the business.

16After poor schooling until Year 10, you completed Year 11 in Wagga Wagga and almost completed apprenticeships in metal fabrication and mechanics. 

17Your relationship, or your brief relationship with Ms Salmon, ended after these events.  She obtained an intervention order against you, which you contravened.  You were arrested on 10 January 2023 and not released until
2 May 2023.  Your bail in relation to the charges in this court was not revoked.  You were sentenced to 30 days' imprisonment for contravention of the family violence intervention order, leaving 84 days of detention unused.  Your counsel describes this time as Renzella time.  However, described, it is appropriate to take it into account when sentencing you and I did so when giving the sentence indication, although I might add at that stage it was thought the period of Renzella time was about five months.

18Following your release from custody you intend to continue to live in the hut behind your brother's business and help him in the mechanics business.  You have the support of your mother, who appeared at court on the last occasion this matter was before me. 

19You have become part of your community. An example of which is the help you give a 90-year-old neighbour, which allows her to remain in her home and this morning Mr Polak, your counsel, has read a short note from that person.

Discussion

20Each of the purposes of sentencing is engaged in your case.  Plainly, my sentences should represent just punishment.  They should deter you and others from committing these offences.  They should act to protect the community from you.  Your prospects of rehabilitation appear reasonable.  You are remorseful, you have family support, you have stable accommodation and employment.  A community correction order should address your criminal related problems.

21In terms of imprisonment, the maximum penalties for the offences to which you have pleaded guilty are: 

(a)   aggravated burglary - 25 years;

(b)   intentionally causing injury - 10 years;

(c)   making threat to kill - 10 years; and

(d)   intentionally damaging property - 10 years. 

22Each of those offences can be punished by the imposition of fines.

Gravity

23In the Director of Public Prosecutions v Myers[1] the Court of Appeal listed considerations ordinarily relevant to assessing the seriousness of a charge of aggravated burglary. 

[1][2014] VSCA 314.

24Your intent at the time of entry was to assault someone.  You were armed with a hammer and Ms Salmon with a knife.  The entry into the bedroom was forceful, causing damage to the door.  It occurred in the early hours of the morning.

Guilty pleas

25You were arrested on 29 March 2022.  You were bailed and remained so until arrested on charges relating to Ms Salmon. 

26There was a committal hearing in the Magistrates' Court.  After being committed to this court, apart from the plea hearing, you have appeared in this court on three occasions for a directions hearing, a case assessment hearing and a sentence indication hearing.  As I said on 2 October 2023, you received a sentence indication which you accepted.

27In terms of the timing of your guilty pleas they occurred midway in the process started with your charging and ending, in theory, in a jury trial or the verdict of a jury trial.  Your pleas acknowledge your guilt.  They are evidence of your remorse.  They assist the criminal justice system and enjoy some of the force identified in Worboyes[2] and other cases.

[2][2021] VSCA 169.

Community correction report

28You were interviewed by a community corrections officer.  She considered you suitable for a community correction order and recommended certain conditions. 

29I have also read the report from the Mental Health Advice and Response Service.

30Your counsel, not explicitly today but implicitly on the last occasion, sought to persuade me to lessen the term of imprisonment.  I am not prepared to do so.  That is the term that I indicated.  The offence of aggravated burglary is punishable by a maximum sentence of 25 years' imprisonment.  This is a severe maximum penalty.  For you this offence was reasonably serious.  The fact it was in a bedroom you entered rather than the house itself makes no difference.  You entered the bedroom with the intent to assault and did so with the hammer you possessed.  Overall, it would be inappropriate to impose any other sentence than that which I indicated.

Sentences

31On the charge of aggravated burglary, you are sentenced to six months' imprisonment. 

32On that charge and the other three charges you are convicted, this is subject to your consent, you will be convicted and sentenced to a community correction order of 18 months' duration with these special conditions: 

(a)   to be supervised by a Community Correction officer;

(b)   to undergo assessment and treatment for alcohol abuse or dependency;

(c)   to undergo assessment and treatment for mental health issues; and

(d)   to undertake programs to reduce the risk of you reoffending.

S 6AAA

33If you had not pleaded guilty to these charges but were found guilty after a trial, I would have sentenced you to a total effective sentence of 18 months' imprisonment and set a non-parole period of 10 months' imprisonment.

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