Director of Public Prosecutions v Hower
[2023] VCC 122
•9 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00794
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL HOWER |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2022 | |
DATE OF SENTENCE: | 9 February 2023 | |
CASE MAY BE CITED AS: | DPP v Hower | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 122 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty – sentence indication – aggravated burglary – common law assault – theft – youthful offender – excellent prospects of rehabilitation – no prior offending – delay.
Legislation Cited: Criminal Procedure Act 2009, s207(1)(a); Sentencing Act 1991 (Vic), s3(1), s5, s8.
Cases Cited:DPP v Meyers [2014] VSCA 314; Worboyes v The Queen [2021] VSCA 169; Zogheib v The Queen [2015] VSCA 334; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
Sentence: 12-month Community Correction Order without conviction
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McCowan | Office of Public Prosecutions |
| For the Accused | Mr C. Terry | Theo Magazis & Associates |
HER HONOUR:
1Joel Hower, on 9 December 2022 you sought a sentence indication on three charges, aggravated burglary person present, common law assault and theft. On 9 December 2022, pursuant to s207(1)(a) of the Criminal Procedure Act2009,[1] I indicated that if you were to plead guilty, I would impose a Community Correction Order. On the basis of this indication your matters resolved and you were arraigned this morning on indictment M10894275.1 and that was an amended indictment. You pleaded guilty to the three charges subject of the sentence indication and the plea.
[1]Criminal Procedure Act (Vic) 2009 s207(1)(a).
Circumstances of offending
2The circumstances of your offending were set out in the prosecution opening. This document was tendered this morning and marked Exhibit A and a summary of your offending is as follows.
3At approximately 10:00 am, you and your co-offender attended the victim’s address. I will refer to Mr Nicola as the victim for most of this, until I get to the victim impact statement, and that is out of no disrespect, I should say. You both attempted to access the rear yard without success, you then attended the other side of the property and entered the rear yard via an access gate.
4At 10:03 am, both you and your co-offender entered the external garage access door and you attempted to open that door, but it was locked. You and your co-offender attempted to gain entry via other means and you were looking under pots for a spare key. Whilst you were attempting to gain entry, your co-offender was heard to say on CCTV, 'Oi he's home, I know he's in bed bro, I know he is, he's in bed and won't come out, I know he's here'.
5Your co-offender then re-entered the garage where he located a key to the internal access door of the garage and he signalled to you and together you both entered the premises through that internal access door.
6Together you both then went into the victim's 10 year old sister's room and asked her if the victim was home, and asked her for directions to his bedroom. You then entered the victim's bedroom and found him asleep naked in bed. You climbed on top of the victim and both you and the co-accused began demanding the location of the money. You punched the victim to the ribs and face and temple between five to 10 times whilst your co-offender went through the bedroom saying, 'where's the money?' and was throwing things around the room.
7The victim's sister then attended the hallway near the bedroom. You stated, 'let's get food yeah'. You then took the following items from the victim's bedside drawer:
(a) Keys to the BMW;
(b) Mobile phone – iPhone X Gold;
(c) Mobile phone – iPhone 7 or 8; and
(d) Victim's wallet.
8After taking this property you said to the victim, 'we will meet you at the car'. At 10:09 am, you and the co-offender left the address. At 10:10 am the victim left the address and got into the back seat of the silver Ford sedan. All three of you then drove in the car and once you were in the car the co-offender said, 'if it's in the car you're sweet, if it's not you're fucked'.
9Approximately one minute later your co-offender, you and the victim attended the silver BMW which was parked outside Crown Street. You told the victim to stay in the car while the co-offender searched the BMW using the key that had been taken from his address. The co-offender searched the BMW but did not find anything. After approximately two minutes, the victim went and helped the co-offender search the vehicle. Your co-offender then became increasingly frustrated when the bag was not located and kicked the rear driver's side mirror of the BMW.
10Your co-offender, you and the victim then got back in the Ford sedan and drove east along Crown Street and then drove along Grant Street and into Morgan Street where the vehicle was stopped. You then got out of the vehicle, walked to the rear driver's side door, opened it, and assaulted the victim by punching him to his face, neck, ribs and head approximately 20 times while stating, 'where's the money ya dog'. Your co-offender stayed in the front passenger seat and said, 'three days or you're dead'. You then stated, 'get out of here'.
11The victim got out of the car and started running away. You threw the victim's phones, his wallet at him and drove off with your co-offender. The victim collected up his items and walked home.
12At 10:27 am he returned home and he was met by his step-father and mother. Upon returning home he was suffering from multiple lacerations, bleeding to his elbow, multiple scratches, bruises and bumps on his body, and inflamed temple and a bruised ear. The victim was taken to Ballarat Base Hospital where the matter was reported to police.
13Between 11:00 am and 1:00 pm on the same day the co-offender reattended the victim's address and threw the stolen keys from the address on the nature strip. The co-offender sent a Snapchat video of this to the victim.
14At 1:44 pm on Sunday 20 December 2020, the victim received a Snapchat message from the co-offender stating, 'i'll see you tomorrow for my purse or 15k'. The victim replied, 'see you tomorrow', but he deleted the message.
15At 10:00 am on 21 December 2020 the victim attended the Ballarat Police Station and provided a formal statement to police. Whilst at the police station, the victim called your mobile phone and recorded a conversation and you said that you had attended the victim's address, 'to go for breakfast'.
Arrest and interview
16You were arrested on 22 December 2020 and you were interviewed at Ballarat police station. You made full admissions to attending the victim's address, partial admissions to assaulting him, but denied the charge of aggravated burglary.
Nature and gravity of offending
17As no doubt you are aware and as has been conceded by your counsel, aggravated burglary is a serious offence and that is evidenced by the maximum penalty of 25 years' imprisonment that Parliament has set for that offending. I accept however in your case that there was context to your offending and I understand this context is not disputed by the prosecution. You became involved in the offending through your co-accused. Both you and the co-accused knew the victim, however it was the co-accused who was of the belief that the victim had stolen a bag and money that belonged to him. There had been demands made by the co-accused to the victim to return the money and the victim had denied the theft. I understand your connection to your co-offender in the way outlined by your counsel this morning, that is that you were very good friends with his brother, and that his brother had passed away and I note that there was reference to that in the depositional material.
18Against this background you attended at the victim's address and entered with the co-offender. The victim was confronted over the theft and again made denials and it was at that point that you assaulted him and took the car keys.
19In assessing the seriousness of this particular instance of aggravated burglary I have considered the case of DPP v Meyers[2]. In that case the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors.
[2] DPP v Meyers [2014] VSCA 314
20At the time of entry your intent was to assist your co-offender and you attended out of misplaced loyalty. You were in company with your co-offender and your offending occurred at 10 am in the morning. Your co-offender was able to access the victim's home by locating a key and gaining entry via the garage area and you followed. Neither you nor your co-offender had a weapon but you were both reasonably certain the victim was at home. As it turned out his 10-year-old sister was also present and she witnessed your offending which was no doubt very scary for her. She made a VARE statement to the police. I find that your victim was frightened of you and your co-offender and your offending was somewhat protracted, in that your victim went with you and your co-offender in the car and was assaulted again whilst looking for the bag and the money. Your victim was also assaulted in his bed, in his home whilst he was entitled to feel safe and secure and he sustained injuries.
Victim Impact Statement
21Your actions have had a significant and lasting impact on your victim and I really wanted your counsel to read to you exactly what the victim had to say about this, because it has been significant for him. He has moved away, he is somewhat isolated as a result of that. The victim impact statement was tendered and that was marked as Exhibit B. In this statement Alexander Nicola describes that he has had trouble living a normal life. He has lost friends, he has had trouble sleeping, he cannot feel happiness, he is angry and he suffers from depression and anxiety to the extent that he was medicated for some time and he has had to go through the very difficult process of trying to wean himself off that medication. He no longer participates in activities that he once enjoyed. He said he used to enjoy Futsal and also jogging, but now he lacks motivation and enjoyment in life. He put it simply by saying he feels fractured and forgotten.
22So I indicate to Mr Nicola that I have not forgotten him in this sentence. I have read his victim impact statement, I have caused it to be read to you, so that you understand the impact that you have had on him. I take it very seriously that this has had a real impact upon him and I take it into account when I am sentencing you.
Personal circumstances
23You are now 24 years of age. At the time of this offending you were 22. You were born and raised in Ballarat. You lived with both your parents only moving out of home when you purchased your own property.
24You enjoy a good relationship with both of your parents and happily you have significant support from them. Your father is 55 years old and runs a business manufacturing custom trailers. Your mother is 53 years old and works as a hairdresser. You have been raised in a loving and supportive environment free from exposure to drugs, alcohol abuse or violence.
25In terms of your education, you attended Lumen Christi Primary school Prep- Grade 6. Your secondary education was undertaken at St Patrick's College until Year 11. Whilst at school you worked in hospitality at the Lake View Hotel for 1 year. You left school so as you could take up full time carpentry work and you have been employed full time in the building industry since.
26In 2014, you commenced a carpentry apprenticeship and have been fully qualified as a carpenter since January 2018. You have had 3 employers over the years, DW Building Solutions where you worked for 1 year, Passive Homes where you worked for 7 years and your current employer is D & T Builders.
27You possess your First Aid Ticket and have completed an electrical spotters course to allow co- workers to work within the required 6 metre distance of high voltage power lines.
28Growing up you played football for Sebastopol football netball club from under 10's until under 18's. You have also played basketball for Exies basketball Ballarat and represented the Ballarat Miners basketball team in tournaments around regional Victoria in under 13's. Your pro-social involvement in sport continued into 2019 and 2020 when you played senior football for Bungaree football netball club.
29You have been a dedicated boxer since your teenage years and won a novice
light- heavyweight Victorian boxing title.30Currently, you live in your own home that you built. You moved into this home with your long-term girlfriend of nearly 3 years. Your girlfriend is employed in the beauty industry and has owned her own salon for the last 2 years. In addition, you have worked hard to purchase 2 investment blocks of land, one with your girlfriend and the other property co-owned with your parents.
31Unlike many others who appear before the courts you are fortunate to have no mental health, drug or alcohol issues.
Factors in mitigation
32As described above, your case resolved at the sentence indication hearing. I consider in the circumstances, your plea has significant utilitarian benefit. The Court has been spared the time and expense of a trial and witnesses were not required to give evidence at trial.
33In addition, I consider that a plea of guilty at the tail end of the COVID-19 pandemic, when the court has considerable backlogs, is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
34I consider your plea to be a valuable one in the sense that you may have had an arguable defence, that is, in relation to the aggravated burglary charge which is the most serious of the offences. In these circumstances, I cannot increase the utilitarian value of your plea. However, I can and do take into account the subjective factors that your plea of guilty demonstrates. These factors include your desire to facilitate justice, your acceptance of responsibility for your offending and as an indicator of the depth and degree of your remorse.[4]
[4] Zogheib v The Queen [2015] VSCA 334.
Youth
35At the age of 24 you are still to be sentenced as a youthful offender. You were only 22 at the time of the offending and although you do not fit the definition of a young offender within the meaning of s3(1) of the Sentencing Act 1991, the principles that apply to the sentencing of young offenders have some application in your case. In my view although your offending is serious it is not so serious as to displace those principles generally. These principles include:
(a) The youth of an offender should be a primary consideration for the sentencing court where that matter properly arises[5] and it does arise in your case.
(b) Young offenders are generally immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
(c) Courts recognise the increased potential for young offenders to be rehabilitate, which is in the public interest; and
(d) Incarceration can impair rather than enhance a young offender's prospects of rehabilitation.[6]
[5]R v Mills [1998] 4 VR 235.
[6]Azzopardi v The Queen (2011) 35 VR 43, [34].
36Your age and circumstances at the time of your offending, in my view, reduce to a degree your level of moral culpability and the weight that the court must put on general deterrence.
37
Delay is an important mitigatory factor that I have taken into account in your case. Your case has remained unresolved for two years. Your matter has been caught up in the backlog of cases that have plagued the court as a result of the
COVID-19 pandemic and I accept that since your arrest and since being charged in 2020 you have had to live with the worry and strain of this case, and it has caused you anxiety and stress. Since this time, you have not known what your future would hold in terms of your liberty.
38The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. Probably more correctly, it adds weight to the submission of your counsel that this was an aberration of someone who was of otherwise good character. There has been no subsequent offending since December 2020. You have continued to work hard in your employment notwithstanding the uncertainty surrounding your future.
39You have no prior convictions and, as I have said, you are a person of otherwise good character. You have an excellent work history and future employment prospects. In this sense you have been a contributing member of the community and will continue to be so into the future. Your offending on this occasion as I have said should be seen as an aberration of behaviour, as in all other respects you present as a responsible hardworking young man. This morning I received three testimonials one from Travis Flintoft (your employer), one from Clinton Vermaak (your trainer at the gym) and one from a retired police officer, Don Frazer. Each of these gentlemen speak of you in glowing terms. You are from a good family and have great support from your parents, from your workplace and within the community.
40In the circumstances I consider you have excellent prospects for rehabilitation.
Sentencing
41I consider that the relevant sentencing principles that must be applied in your case are general deterrence, albeit moderated to take into account your youth, denunciation, protection of the community and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. I am of the view that you can be adequately punished by the imposition of a Community Correction Order. I expect that every time you head off to do community work you will reflect on what you have done and give some thought to the impact that this has had on Mr Nicola. Given your lack of prior convictions, the fact that you have not re-offended, the admissions you made to police and the seriousness with which you have taken this matter, I do not consider specific deterrence to be an important factor in sentencing. I consider it very unlikely that you will attend back at Court being charged with any offending.
42I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant to your case. I have also taken into account as far as possible the current sentencing practices for offences, particularly charges of aggravated burglary, to which you have pleaded guilty.
Disposition
43Your counsel has submitted the appropriate penalty in your case is one of a Community Correction Order. The prosecutor, Mr McCowan, also submitted that such an order was within range in the circumstances of your case. As I have previously mentioned at the sentence indication hearing of this matter, I indicated I would impose such an order. In formulating the order, I have taken into account the powerful mitigatory factors in your case including your youth, your lack of prior convictions, your plea of guilty, the excellent references tendered on your behalf and your prospects for rehabilitation.
44Mr Hower, on each of the charges you will be placed on a Community Correction Order for a period of 12 months. There will be only one condition on this Correction Order and that is that you complete 200 hours of unpaid community work over that 12-month period. Because the only condition of this order is community work, once you complete the hours the order will finish and I am sure that will be explained to you at Corrections.
45In addition to the conditions I have imposed, I want you to listen carefully to this because there are standard conditions to a Community Correction Order, and you need to consent to the order before I can make it, so you need to understand what you are consenting to. So, the first and foremost of the other standard conditions is that you must not commit any offence during the 12 month period which could be punished by a term of imprisonment. You must also report within two working days to the Ballarat Community Corrections Office. You are required to advise your supervising Correction Officer of any change of address of where you are living and working, and this must be done within two clear working days. It is also a term of all Community Correction Orders that you must submit to visits as directed and you must obey all instructions and directions of a Corrections Officer. You cannot leave the State of Victoria without prior permission during the currency of the order.
46If you breach the order by reoffending or you do not do the unpaid community work that I have ordered, you will be charged with a contravention of the order and you will be brought back to me before this court and you may well be re-sentenced for the original charges. Do you understand the conditions of a Community Correction Order?
47OFFENDER: Yes.
48HER HONOUR: Do you consent to undertaking such an Order?
49OFFENDER: Yes.
50HER HONOUR: All right. You are right to have a seat. I have heard compelling evidence of your previous good character and obviously a conviction is likely to have a serious and long-lasting consequence upon you. I have had regard to s8 of the Sentencing Act and the three factors that are enunciated in that section. So firstly, the seriousness of offending and that is against imposing a non-conviction in this case.
51However, the other two factors, character antecedents and past history of an offender go very much in your favour. You have a very good background. Your character and antecedents are impeccable, the references tendered on your behalf, as I have said, speak of you in glowing terms so that goes in your favour.
52The third factor is the impact that recording a conviction would have on your social and economic well-being and your employment prospects going into the future. I have taken into account the references in that regard, that you are currently working at schools and you need a Working With Children Check for that. I have taken into account that into the future you are very likely to apply to be a builder and that a conviction would have an impact upon that; it would not be a positive one.
53I have also taken into account the mentoring work that you do at the gym and the impact that it would have on that. It is really important that young people in the community have people such as yourself, who have had this experience with the law and the courts, and can speak to them about that and be a positive role model and a good example to them in a structured and disciplined-type pursuit such as boxing.
54So in those circumstances, I think it does again speak in favour of a non-conviction. So when I weigh those factors I am persuaded that I should exercise my discretion not to impose a conviction in this case.
55So the order of the Court will be that you are to undertake a Community Corrections Order for 12 months; 200 hours of unpaid community work and I will impose that without conviction.
56I do not intend to make the disposal order that is sought by the Crown.
57MR McCOWAN: As Your Honour pleases.
58MR TERRY: As the Court pleases.
59HER HONOUR: We will just print out the Community Corrections Order and I will get Mr Terry to explain that to you again, just so that you fully understand it. You have not had the benefit of an assessment with Corrections because I am not required to do that, in the circumstances where it is work order only of less than 300 hours, which is what I have done.
60Whilst I am waiting for the Order to be printed out, I might just address some remarks to Mr Nicola? He is not there.
61MR McCOWAN: I don't believe he is there anymore.
62HER HONOUR: Could you pass on, Mr McCowan, that I hope that now that this matter has resolved and has been completed, that he is able to move on and that it helps in the process of healing.
63MR McCOWAN: Yes, thank you, Your Honour. I will do.
64HER HONOUR: Yes.
65MR TERRY: Thank you, Your Honour.
66HER HONOUR: So you will get a copy of the Order before you leave and one for counsel. Thank you very much for the way the matter has been conducted and for the submissions, it was really helpful. Good luck with the Order, I have no doubt you will find 200 hours no problem at all and I do not expect to see you back. This is your chance.
67OFFENDER: Thank you.
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