Director of Public Prosecutions v Hooper, Matthew
[2013] VCC 548
•22 April 2013 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00108
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW HOOPER |
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JUDGE: | His Honour Judge Mason | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2013 (Shepparton) | |
DATE OF SENTENCE: | 22 April 2013 (Melbourne) | |
CASE MAY BE CITED AS: | DPP v Hooper, Matthew | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 548 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - aggravated burglary
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr D. Cordy Mr J. Ekegren | Office of Public Prosecutions |
| For the Accused | Mr K. McDonald | Sofra Solicitors |
HIS HONOUR:
1 Matthew Hooper, you have pleaded guilty to one charge of aggravated burglary. This offence carries a maximum penalty of 25 years’ imprisonment.
2 You have no criminal history.
3 You are now aged 27 and you were that age at the time of this offending.
4 You are the previous partner of the victim in this matter, Tara Peterson. You have a young son with Ms Peterson. At the time of the offences you were employed as an electrician and lived at an address in Shepparton.
5 The victim in this matter, Tara Peterson, is 26 years of age and at the time of the offences lived in a unit at an address in Mooroopna with a secondary victim, James Martin. You and Ms Peterson share custody of your son.
6 On Thursday 4 October 2012 you and the victim sent each other text messages about your relationship. The victim I am referring to here is the secondary victim James Martin. At approximately 9.45 p.m. you attended at the unit in Mooroopna and knocked on the front door. At the time Ms Peterson was home alone. She asked you what you were doing at her unit and refused to open the door.
7 You forced open the door by bumping the door with your shoulder. The force you used damaged the timer around the lock and the door swung open. At the time of entering the unit you had in your possession a baseball bat.
8 You entered the unit looking for Mr Martin. You were in an agitated state and searched all of the rooms in the unit. You asked Ms Peterson where Mr Martin was and she informed you that he was not at home.
9 You located Ms Peterson's phone on the couch in the living room and rang Mr Martin's number. Mr Martin answered the phone believing it to be Ms Peterson. Mr Martin alleges that you stated "Come round you weak dog.".
10 Mr Martin called 000 and requested police attend at the unit. He drove back towards the unit and found a police vehicle at a nearby intersection. He spoke to Leading Senior Constable Robert Slee of the Mooroopna Police.
11 Mr Martin informed Leading Senior Constable Slee that his partner was at home and that her ex-boyfriend was at the unit with a bat.
12 Leading Senior Constable Slee followed Mr Martin to the premises. Mr Martin got out of his vehicle and started walking towards the unit. He observed you holding onto a baseball bat.
13 Mr Martin was in fear of being seriously assaulted by you and backed away towards the police vehicle. You observed the police vehicle and threw the baseball bat over the front unit of the address in Mooroopna. You walked back towards the house where Ms Peterson was standing.
14 Leading Senior Constable Slee spoke with Ms Peterson. You again became upset and agitated and made several threats towards Mr Martin. You were arrested by Leading Senior Constable Slee at the scene and placed in the rear of the divisional van.
15 Police searched the area and located a black Easton softball bat in the front yard of the address in Mooroopna.
16 Neither Ms Peterson nor Mr Martin received physical injuries; however, Mr Martin was in fear of being assaulted by you by the bat.
17 You caused minor damage to the front door jamb at the unit in Mooroopna when you forced entry into the premises. The victim's friend repaired the damage at no cost.
18 You were arrested and conveyed to the Shepparton Police Station for a recorded interview.
19 During the recorded interview you admitted attending at the unit in Mooroopna. You admitted that you entered the unit without permission and admitted to bumping open the door with your shoulder. You admitted that you were in possession of the baseball bat when you entered the premises and you claimed you had it with you for protection. You denied that you entered the house to assault Ms Peterson or Mr Martin.
20 Your personal circumstances are as follows.
21 You are 27 and have no previous convictions. You completed your formal education to Year 11 and completed an apprenticeship as an electrician. Whilst at school you had also displayed a good work ethic delivering catalogues and working at an auto wreckers business. You ultimately followed your electrical trade and have been employed by your current employer since 2003. You have been described as hardworking, honest and reliable. Other references refer to your responsible and helpful character and close family connection.
22 Your former partner, Ms Peterson, regards you as being a good person and an excellent father to the three-year-old child you share together. This is endorsed by other character references. Mr Peter Warburton and Mr Peter McPhee both gave sworn testimony as to your qualities and excellent character. Mr Warburton described your remorse for your actions.
23
The crime of aggravated burglary is one of the most serious of offences. The Court of Appeal has stated that the incidence of home invasions must be discouraged by the courts and it would only be in a rare case that such conduct would not result in a sentence of imprisonment and for a significant period. The principles of general deterrence and denunciation feature prominently in the sentencing discretion. The maximum penalty of 25 years’ imprisonment is an indication of how seriously Parliament views this offence.
24 In mitigation I accept the matters submitted by your counsel including:
- your plea of guilty and that it was made at the very earliest stage;
- your lack of any previous history of violence;
- your lack of any prior offending at all to a mature age;
- your remorse;
- the testimony as to your otherwise excellent character;
- the application you have shown to your employment over a sustained period;
- the response you made to address a contributing cause of the offending through anger management counselling;
- the qualities of compassion you have shown to others and the dedication you have to your child;
- the responsible way in which you have otherwise dealt with a hurtful separation and the consideration you have extended to your past partner; and
- your close and very supportive family and friends.
25 I also have been able to note, by way of your own appearance in court, the very serious way in which you have seen your position and how it has affected you.
26 Your counsel submitted that in light of the particular extenuating circumstances of this case an appropriately tailored Community Correction Order would fall within appropriate sentencing range.
27 The prosecution submitted that having regard to recent Court of Appeal authority the appropriate range of sentence should constitute an immediate imprisonment of 6 to 12 months with a range of head sentence of between 12 months and 2 years, although a sentence of three months’ imprisonment followed by a Community Correction Order might not be inappropriate.
28 The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
29 I have considered carefully the authorities, in particular the recent decision of the Court of Appeal in the matter of Hogarth v R[1], and the statistical summary provided by Mr McDonald. These aspects, of course, have to be considered in the context of the particular circumstances of this case. In my view your behaviour does fall to be categorised as a confrontational armed robbery. The motivation for your break-in was to search for the intended victim, acting in anger, with intent to assault. It was precipitated by jealousy in the context of a previous intimate relationship.
[1][2012] VSCA 302
30 On balance, however, in the particular circumstances of this case I am not persuaded that the purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve your confinement in prison.
31 In light of your otherwise honourable life and maturity I regard this incident in your life as exceptional and arising out of a spontaneous loss of self control. I do not think it is likely that you will offend in this manner again. It is fortuitous that no one was hurt and the direct victim of your entry into the house has stated that she was not fearful.
32 I requested an assessment and report as to your suitability for a Community Correction Order as an appropriate sentencing option. I have received the report and it is positive as to your suitability. You have been assessed as having a low risk of re-offending and in light of your circumstances it is recommended that you participate in programs directed towards treatment and rehabilitation and that you are under the supervision of a Community Correction Officer. I endorse these recommendations.
33 Mr Hooper, could you please now stand.
34 On Charge 1 of aggravated burglary you are convicted and ordered to serve a Community Correction Order for a period of 18 months.
35 The Community Correction Order commences today and ends on 21 October 2014. The correction centre you will attend is the Shepparton Community Correctional Service at 307-331 Wyndham Street, Shepparton and you must attend there within two clear working days after the commencement of the order, that is, by 4 p.m. this Wednesday, 24 April 2013.
36 All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:
- you be under the supervision of a Community Corrections Officer;
- you perform 100 hours of unpaid community work over a period of 18 months as directed by the regional manager;
- you undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager; and
- you undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, cultural and personal development programs as directed by the regional manager.
37 Now I believe from the pre-sentence report that you have had the mandatory terms of a Community Corrections Order explained to you. However, it is appropriate that I briefly summarise them here and you keep them in mind.
38 The mandatory terms are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must report to and receive visits from a Community Corrections Officer;
- you must report to the Community Corrections Centre, that is the Shepparton Centre, within two clear working days of the order starting and, as I have already indicated, that is Wednesday 24 April, this week;
- you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;
- you must not leave the Victoria without first getting permission to do so from a Community Corrections Officer; and
- you must obey all lawful instructions from and directions of Community Correction Officers. Such directions may be given either orally or in writing.
39 Do you understand and agree to those conditions, Mr Hooper?
ACCUSED: Yes, Your Honour.
40 Now if you are ill or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is the centre at Shepparton, and I recommend that you obtain legal advice if any of these things happen.
41 I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the Community Corrections Order and re-sentence you on the original charge and I may also deal with you for the breach by sending you to prison for up to three months. So do you understand the consequences of breaching a Community Correction Order?
ACCUSED: Yes.
42 All right. I will ask you to sign that Community Correction Order shortly. You may take a seat for the moment.
43 At the plea hearing the Crown sought a disposal order as to the baseball bat to which you have consented, and I have made that order today.
44 The Crown also sought an order for the taking of a forensic sample to which you again consented and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the making of the order is in the public interest.
45 I must inform you that if at the time of the request 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 police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Hooper?
46 Now apart from the signing by Mr Hooper of the Correction Order are there any other matters from counsel?
47 I just ask for the Correction Order to be passed to Mr Hooper for signature. Mr McDonald, if you could assist with that.
HIS HONOUR: Thank you. Any other matters by the counsel?
MR EKEGREN: No, Your Honour.
MR McDONALD: No, Your Honour.
HIS HONOUR: All right. I'll just adjourn the court until 10.45 for the next matter, Mr Mitchell.
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