Director of Public Prosecutions v Judd&Anor

[2015] VCC 1103

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00564

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN JUDD
MATTHEW EUSTACE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2015
DATE OF SENTENCE:	12 August 2015
CASE MAY BE CITED AS:	DPP v Judd&Anor
MEDIUM NEUTRAL CITATION:	[2015] VCC 1103

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. N. Burnett
For Accused Judd	Mr. S. Kenny
For Accused Eustace	Mr. G. Barns

HIS HONOUR: 

1Damien Judd and Matthew Eustace, you can sit down for the moment.  You have each pleaded guilty to an indictment charging you, Damien Judd and you, Matthew Eustace in Charge 1 with aggravated burglary, in that on 2 November of last year, you entered a building which was a private home in Beluga Street in Mount Eliza, knowing that persons were present, and with intent to commit an offence involving assault to a person therein.

2On Charge 2 you, Matthew Eustace, have pleaded guilty to the offence of common assault, assaulting Glen Clarkson.  And on Charge 3 you, Damien Judd pleaded guilty to an offence of common assault in that you assaulted Jason Avery.  And on Charge you, Damien Judd, have pleaded guilty to another offence of common assault, in that you assaulted Martin Clarkson.

3The maximum term of imprisonment for the offence of aggravated burglary is 25 years, and for common assault is five years.

4Each of you has also admitted a number of prior court appearances and convictions, although I note that there does seem to have been a significant gap in the case of both of you, between your last offences or series of offences, and the offending that brings you before the court today.

5The prosecution tendered and relied upon a plea summary and submissions, which is Exhibit A, and I incorporate that its entirety into these reasons for sentence.  That document is available should the press or the public wish to obtain access to it, albeit in its amended form.

6The summary catalogues an ugly incident, which occurred in the late evening on Sunday 2 November of last year.  It seems clear that each of you was intoxicated, having had a considerable quantity of drink during the course of the day after a day at the races, and then subsequently at the home of friends.

7That of course provides you with no mitigation, because each of you were well aware of the effects of alcohol.  Indeed each of you has been involved in criminal conduct which has been associated with drinking on previous occasions.  So it might have come as no surprise to you that you behaved in a very stupid manner on this particular evening.

8You, Judd, described to Mr Cummins that your behaviour was stupid and ridiculous, or words to that effect.  Undoubtedly it was.  But it was worse than that, because you invaded somebody's home.  That is a serious offence, and to do so in circumstances where you intended to carry out an assault on persons therein, whether physically or by causing them to fear, is an aggravating feature of that offence.

9Ordinarily, it is an offence which carries an immediate term of imprisonment, and quite a substantial one.  I say ordinarily, and I think each of your cases, I would have been inclined to impose such a sentence had it not been for factors, which I will come to in a minute.

10In addition to entering the premises in that way with the intent to carry out offences in the nature of assault upon persons therein, you actually did assault people within that property.  Those offences are reflected in the offences of common assault, to which you also pleaded guilty.

11Your behaviour was loutish; it was thuggish; and thoroughly unpleasant, and was calculated to - that is, likely to - cause the persons whose home you invaded ongoing emotional harm.  That is reflected in the victim impact statement of Debbie Joy Clarkson, to which I referred during the course of the plea hearing, which is Exhibit B.

12The conduct, as I say, was of a serious nature, and requires the denunciation of this court; it requires me to punish you, each of you, for your offending conduct, and to deter you from further conduct of this kind; and to impose a sentence that has the capacity to deter others.  However, I am also required to consider your rehabilitation, and consistent with my duty to pay proper regard to the other sentencing considerations, to facilitate that rehabilitation.

13Turning to matters personal to each of you, your counsel, Judd, provided me an outline of submissions, together with a report from Mr Jeffrey Cummins, and a letter from your mother.

14In your case, Mr Eustace, your counsel presented your case as being similar to that of Mr Judd, and supplemented these submissions on your behalf with a letter of reference from your parents, who you decided not to involve in these proceedings, and your partner Stacey Lewis.

15I think I can deal with the cases of both of you together, rather than separately.  You are respectively aged 25 and 24.  You had, each of you, a poor start to your late teens early adult life, and have committed offences in the past, some of them quite serious, and it looked as though, from your record, you were heading for a life of petty crime at least, if not worse, fuelled by alcohol abuse, and to some extent drug abuse.

16However, it seems that each of you have also discovered that you have the capacity to work, and I have the impression that each of you is capable of leading a fulfilling and hardworking life, and making a contribution to the community, as well as to your own personal lives away from a life of crime.

17I have no doubt that each of you in various ways have been exposed to bad influences; to temptations of alcohol and drug abuse; to a culture in which that sort of excess is normal; and that in those circumstances, you have also found yourselves committing offences of the kind for which you appear today.

18Yet you have demonstrated the capacity, each of you, to stay out of trouble for a significant period of time, albeit in a period of your life when you would no doubt have been exposed to those self-same temptations and bad influences.

19So I rate your prospects of rehabilitation as being good.  I see absolutely no reason why you should not put this behind you, each of you.  Each of you has expressed remorse.  I accept you are remorseful; I accept that you each regard your behaviour as stupid and ridiculous; and that you are hopefully now, each of you, on the road to rehabilitation, taking a real grip on your lives and confronting the substance abuses which have brought you in breach of the law.

20There does not seem to be any good reason why you should not continue with that process of rehabilitation.  I have come to the conclusion that although I accept the prosecution's submission that ordinarily a term of imprisonment of even a relatively short duration is warranted for this kind of offending, and the fact you went in together and invaded somebody's home ordinarily would require a term of imprisonment.

21However, I also accept that there has to be a sense of proportion.  This was a spur of the moment decision, and the offence was of relatively short duration.  The assaults that you carried out were serious enough, but there are many more serious assaults carried out in these sorts of circumstances, unfortunately, and one again has to keep the whole event, I think, in proportion.

22I am bound, as a result of the decision of the Court of Appeal in the case of Boulton and others, to which reference was made in the course of the plea hearing, to consider whether it is necessary in all the circumstances to impose a term of imprisonment, with the unfortunate effects that a term of imprisonment can have upon young people.  And I have concluded that this is a case where there is a suitable alternative, and that I can meet the competing sentencing considerations by imposing a community corrections order with suitable punitive elements contained in it, and suitable rehabilitative components also.

23I am quite sure that the community will be better protected from each of you in the long term by promoting your rehabilitation, rather than risking that being set back, and perhaps set back significantly, by imposing a term of imprisonment upon you.

24Each of you are still young men, and I think that that with your lives ahead of you, that this will have been a sufficient wake up call to you, to remind you that you should continue on the path which now each of you seems to have chosen, according to the material that has been placed before me.

25In your case Judd, I am very glad to see that you have left the Frankston area and gone to live in the bush - if I can call Nagambie and the countryside around there the bush - with your parents; they seem to be a good influence upon you, and I accept that you have shown real willingness to confront particularly your alcohol problem.

26In your case, Eustace, you too, I think, have support.  Your girlfriend is here today, and has spoken eloquently in her letter of reference.  I accept that you too have shown signs of willingness to confront the problems which have brought you here today, and to focus on hard work and saving, and preparing for your future.

27And in both of your cases therefore, the orders that I have in mind will be designed to encourage you to continue with that process.  Now, what I have in mind, and I will spell it out for you, is to impose a community corrections order on each of you for a period of two years, and you will be required under that order to complete 350 hours of unpaid community work, and to participate in rehabilitative programs.

28In your case, Judd, drug and alcohol and mental health are to be included, as well as programs to reduce your re-offending.  In your case, Eustace, it seems that the drug issue is not of the same relevance, and your programs would require you to submit to treatment and rehabilitation for alcohol, and programs to reduce re-offending.  Each of you would be under supervision for that two year period.

29I would permit 150 hours of the 350 hours, or 150 of those hours of satisfactorily completed rehabilitation programs to be offset against the unpaid community work.  So if, for example, you were to complete 150 hours of alcohol rehabilitation treatment satisfactorily, then those hours, or such hours as you did complete satisfactorily, would be deducted from the 350 hours of unpaid community work that you would be required to do, up to a maximum of 150.

30You would still have to do whatever rehabilitative work that you did, and satisfactory completion of the programs that will be assigned to you.  You still have to do 200 hours in any event of the 350 hours of unpaid community work subject of the order.

31It is going to be a nuisance.  You will have to attend appointments; you will have to do as you are told; you will have to go where you are told; you will have to submit to assessment; you will have to submit to appropriate treatment; and you will have to attend supervision appointments, and so on and so forth.

32There will be many times when you are doing your rehabilitation, or when you are doing your unpaid community work - you have that to look forward to at the weekend or whenever - that you will regard it as a nuisance.  Well, it is designed to be a nuisance, frankly, because it is designed to remind you not to be so stupid and ridiculous again; not to commit criminal offences.

33And it is also designed to enable the court to retain some degree of control and hold over you, because the orders that I have in mind will act like suspended sentences.  Be sure that if, for any reason, you breach the orders, either by failing to comply with the terms; failing to turn up for appointments without a satisfactory excuse; or committing offences punishable by imprisonment during the period when the order is in force, then you can expect to be brought back before this court and sentenced to a term of imprisonment, simple as that.

34So you have a choice as to whether to stay out of trouble; whether to complete the order; or whether you would rather put yourself at risk of a term of imprisonment certain, which would undoubtedly occur if you were in breach.

35Of course merely breaching the order in itself is an offence, and you would be up for up to three months' imprisonment for that, as well as up for re-sentence for these offences.  And if you commit an offence punishable by imprisonment, you would be up for punishment for that, so you could be up for a fair whack if you commit any further offence during that two your period of the order.

36I cannot impose those orders upon either of you unless you consent to the orders.  No doubt you have given some consideration; no doubt you have discussed it with your counsel.  Are you each willing to consent to an order in those terms?

37OFFENDER EUSTACE:  Yes.

38OFFENDER JUDD:  Yes, Your Honour.

39HIS HONOUR:  All right.  Well, take a seat for a moment.  Now, would you please stand Mr Judd.  For the offence of aggravated burglary, I convict you and order that you be the subject of a community corrections order for a period of two years, which will commence today.  And in addition to the mandatory terms and conditions, you will be required to perform 350 hours of unpaid community work over that two year period.

40You will be required to be under the supervision of the Department of Community Corrections for two years, and you must undergo assessment and treatment for drug abuse or dependency; for alcohol abuse or dependency; mental health assessment and treatment; and to participate in programs or courses that address factors relating to your offending.

41Now, 150 hours of satisfactorily completed hours of treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

42And in relation to Charge 3, I convict you and fine you $500.

43In relation to Charge 4, I convict you and fine you $500.  You can take a seat for a moment.  Mr Eustace, would you stand, please.

44For the offence of aggravated burglary, the subject of Charge 1, I convict you and order that you be the subject of a community corrections order for a period of two years commencing today, and as I indicated in my sentencing reasons a few minute ago, in addition to the core conditions, you will be required to complete 350 hours of unpaid community work; to be the supervision of the Department of Community Corrections for that two year period; and you must undergo assessment and treatment for alcohol abuse or dependency; and must participate in programs or courses that address factors relating to your offending conduct.

45And in your case also, 150 hours of treatment and rehabilitation satisfactorily undertaken and completed may be offset, or counted against, the hours of unpaid community work that you are required to perform.

46For the offence of common assault the subject of Charge 2, I convict you and fine you $500.  Take a seat, please.

47In the case of each of you, I make the order for disposal in accordance with the draft which I have been provided, and I also make orders for each of you to provide forensic samples by way of a scraping from the inside of your mouth.  And in your case, Judd, that will be done at the Shepparton police station during the period specified in the order.  And in your case, Eustace, that will be done at the Frankston police station in the period specified in the order.

48Now, when you attend to comply with the order, you will be asked by an authorised officer to provide a scraping from the inside of your mouth.  If you do that, that is the end of the matter.  If, however, you fail or refuse to do that, then the officer will be authorised to take blood from you, and may use reasonable force.  I am quite sure that you will not put them to that trouble.

49But you pleas of guilty, I would have sentenced you to imprisonment for a period of three years and a non-parole period of two years.

50Now, you may wish to have some time to pay those fines.  Do you want to take instructions, counsel?

51MR BARNS:  I think one month, Your Honour, in the case of my client.

52HIS HONOUR:  One month in your case.

53MR KENNY:  Your Honour, I'd ask for a three month stay in
Mr Judd's case.

54HIS HONOUR:  Three months?  All right, well in your case, Judd, I will grant you a three month stay for the total fines of $1,000 that I have imposed upon you, and in your case, Eustace, I will grant you a stay of one month to pay that $500 fine.

55All right, now counsel, if you would accompany my associate to your clients respectively, to ensure that they understand exactly what they are being asked to sign.  Then the orders can be signed and completed.

56MR KENNY:  Yes, Your Honour.

57HIS HONOUR:  Are there any other orders that I need make?

58MS BURNETT:  No, thank you, Your Honour.

59HIS HONOUR:  All right, thank you.  Well, you may each leave the dock.  And we will adjourn the court, I think.

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