Director of Public Prosecutions v Knights
[2021] VCC 1304
•9 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-00544
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEREK KNIGHTS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2021 | |
DATE OF SENTENCE: | 9 September 2021 | |
CASE MAY BE CITED AS: | DPP v Knights | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1304 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Burglary – Property damage – Offender entered victims’ house through roof with intent to steal – Offending whilst on bail – Relevant criminal history – Insight and remorse – Covid-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 76, 197(1); Control of Weapons Act 1990 s 6(1); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 14 months together with a Community Correction Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Malik (Plea) Ms M Vingerhoets (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr A Jackson | Valos Black & Associates |
HIS HONOUR:
Introduction
1Derek Knights, you have pleaded guilty to one charge of burglary contrary to s 76 of the Crimes Act 1958 (Charge 1) and one charge of damaging property contrary to s 197(1) of the Crimes Act 1958 (Charge 2), both of which carry a maximum penalty of 10 years imprisonment.
2You have also pleaded guilty to the related summary charges of possess a controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990 which carries a maximum penalty of 12 months imprisonment or 120 penalty units (Summary Charge 6) and one charge of commit an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment or 30 penalty units (Summary Charge 7).
3You have also admitted your Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were born in May 1984. At the time of the offending, you were 36 years of age and had no fixed place of residence.
6At approximately 2.30 am on 8 July 2020, you attended a unit block situated at Main Road East, St Albans. This address was occupied by Joseph and Halina Marth who were 77 and 68 years of age at the time of the offending.
7You used a fence to climb onto the roof of 219 Main Road East. You then walked across the roof of No.219 to the roof of No.217, the roofs being directly against each other. There, you removed several roof tiles to create a hole big enough to climb through and went into the roof space directly above the spare bedroom of the unit. At the time of entry, you were in possession of a large kitchen knife, which gives rise to Summary Charge 6, possess a controlled weapon. It is the prosecution case that your intention in breaking into the house was to steal items. It is these facts that relate to Charge 1, burglary.
8At this time, Mr and Mrs Marth were asleep in their bedroom and were woken by the noise of the tiles being removed. You climbed through the roof cavity before falling through the plaster and into the living room of the unit. Mr and Mrs Marth, who had been looking through the house to identify the source of the noise, observed you standing in the front hallway near their bedroom, holding the large kitchen knife.
9You told them not to call the police a number of times before running into a spare bedroom next to the front door. You used items from within the room to barricade the door closed. While you were doing this Mrs Marth called Triple 0.
10You then smashed the bedroom window before forcing the external shutter off its track and climbing out of the window. It is these facts that relate to Charge 2, damage property.
11CCTV depicts you climbing over the fence adjoining 217 and 219 Main Road East whilst holding a knife. You walked to the western end of the front yard of No.219 before hiding behind a van and a brick fence. Police arrived at the address at approximately 2.44 am.
12As police entered No.217, you climbed over the fence adjoining No.219 and No.221 Main Road East. You are observed on CCTV hiding behind a vehicle in the front yard of No.221 where your clothing was able to be identified and a tattoo can also be observed on the left side of your neck.
13You continued travelling west down Main Road East. You were not able to be located by police.
14At the time of the offending, you were on bail, having been placed on bail on 30 June 2020. It is these facts that relate to Summary Charge 7, commit indictable offence whilst on bail.
15Blood staining was identified on the back of the door in the spare bedroom, where it is alleged you barricaded yourself in. Swabs were taken of the blood. A single source DNA profile was subsequently obtained from the blood staining with it being 100 billion times more likely that the DNA came from you rather than from a person selected at random.
16Investigators obtained CCTV from neighbouring properties. You can be heard on the footage walking over the roof of 219 Main Road and onto the roof of No.217. You can also be heard removing roof tiles prior to entering the roof space and heard smashing the bedroom window to get out of the house. On 21 July 2020, you were arrested.
17On 14 February 2021 the Informant, Senior Constable Timothy Farrant, received a letter in the post from you dated 18 January 2021 and signed in your name. In that letter you make the following admissions:
· that you apologise to the elderly occupants of the house where you caused damage and scared them in doing so;
· that upon your release, you would like to pay the couple for any damage done to their house;
· that you had climbed onto the roof of the complainant's property after previously being stabbed in the leg while at another property and you were trying to escape from the people that had earlier assaulted you;
· that your foot broke through one of the roof tiles causing your foot to become stuck and you used your other foot to break the tiles;
· that you decided to hide inside the roof cavity, following which the plaster cracked causing you to fall into the house;
· that you observed the elderly male resident of the house holding a baseball bat and that the elderly female resident was on the phone; and
· you told the couple that people were chasing you and that you were not going to hurt them and not to call the police.
Nature and gravity of the offending
18I turn to the nature and gravity of the offending. The circumstances of the offending are somewhat unusual and your plea to the burglary charge is on the basis of you entering the house with an intent to steal. While falling through the roof may not have been part of your plan, it nonetheless resulted in you confronting the victims in the way described. However, you did not threaten the victims or steal any property but rather, sought to get out of the house immediately. Nonetheless, burglary is a serious offence and in this instance aggravated by the fact that you were on bail at the time.
19A victim impact statement was prepared by Mrs Marth and tendered on the plea. Mrs Marth conveys what she experienced during the offending including the fear of being awoken by the noise on the roof and then experiencing you falling through the roof. She writes that she thought she and her husband were going to die when you confronted them with a knife. Mrs Marth states that she often cries at night. It is clear this incident has had a lasting effect on the victim and her husband. I take the contents of the victim impact statement into account.
Personal circumstances
20You are now 37 years of age. You grew up in Melbourne. You have two sisters. Your parents separated when you were five months old and your upbringing was not a functional or nurturing one. You had no relationship with your father, who was an amphetamine user and incarcerated for a considerable period of time. You had a difficult relationship with your mother who had mental health issues. Your mother re-partnered with a man who was violent and an alcoholic. Your stepfather was physically abusive towards you and your mother.
21You struggled at school academically due to learning difficulties and also displayed behavioural issues. You were ultimately expelled from secondary school in Year 7 and attended a community school in Brunswick until Year 10. At the age of 14 you left the family home as a result of your stepfather's strict discipline and physical abuse.
22You have had very unstable housing since - living in a hostel, couch surfing and living on the streets. You were exposed to substance abuse from a young age and were surrounded by antisocial and deviant peers. At the age of around 16 you began committing offences and becoming involved in the Youth Justice system.
23At the age of 16, you worked full time as a bricklayer for one year and then worked casually until the age of 21. You have also completed a car detailing course at TAFE but have been unable to secure employment since.
24Alcohol became an issue for you in your teen years and you report that you were binge drinking daily until the age of 17. Your drug use continued to increase and you later began using methamphetamines, GHB, opiates and benzodiazepines. You state that you were using methamphetamine and GHB heavily up until your arrest.
25You were in a long term relationship from the age of 18 for six years. The relationship was unstable and volatile due to mutual substance use.
26When you were 19 your father died in a car accident. At around the same time, you became a father for the first time, but sadly your newborn daughter died as a result of birth complications. You became emotionally unstable and distressed after these traumatic events. In the absence of professional support, you internalised your emotions and turned to drugs as a mechanism for coping with your grief. The combination of unresolved grief and drug use led you to criminal offending and subsequent periods of incarceration.
27Nonetheless, your relationship continued and you have three children, two daughters who are now aged around 13 and 16, and one son aged 13. Your daughters are currently under the care of the Department and your son lives with his mother. Your relationship with the mother of your children ended when you were approximately 24.
28Since being remanded in custody, you have used your time productively and taken active steps towards rehabilitation. A number of certificates of completion were tendered on the plea confirming that you have taken advantage of rehabilitative programs that have been available to you.
29You also engaged in counselling to address your substance use issues. Two letters from Caraniche clinician Indrani Barua dated 4 January 2021 and 11 May 2021 were tendered on the plea. Ms Barua writes of your positive engagement in regular individual counselling sessions that target your drug use and recidivism. Ms Barua states that you have demonstrated a motivation for change. Several urine drug screens were also tendered on the plea which confirm that you have been drug free in custody.
30Amanda Brown, Senior Drug and Alcohol Clinician, prepared a letter dated 14 January 2021 which was tendered on the plea. Ms Brown undertook a comprehensive Alcohol and Other Drugs assessment and prepared a letter for the purposes of a previous bail application. Ms Brown outlines your personal history and your substance use history stating that drugs have served as a form of self-medication, especially when your mental state deteriorates.
31According to Ms Brown, you are beginning to develop insight into the issues that lie at the heart of your criminogenic tendencies, namely your drug use and mental health. Ms Brown states that you have demonstrated genuine motivation to overcome these issues.
32You have maintained contact with your mother and sisters via telephone whilst in custody. You are currently in a relationship with Kirsty Bartlett. Upon release from custody you hope to live with Ms Bartlett and her father in Bairnsdale. A letter from Peter Bartlett, your partner's father, was tendered on the plea. Mr Bartlett owns a scrap metal business in Bairnsdale and confirms that he can offer you part-time and eventually full time work in the scrap and wrecking department of his business.
Sentencing considerations
33Mr Jackson, who appeared on your behalf at the plea, outlined a number of matters in mitigation. First and foremost is your plea of guilty. Only one police witness was cross examined at the committal and the matter recently resolved at a further case conference before me. Your plea of guilty carries considerable utilitarian value, as it has spared the time and expense of a jury trial and significantly, has spared the victims from having to give evidence at a trial.
34Given the unusual circumstances of the offending, it was submitted that there was an arguable defence. However, you have sought to resolve the matter, sensibly in my view. In the circumstances your plea of guilty demonstrates your willingness to facilitate the course of justice and bring this matter to a conclusion. Further, while there was some controversy in relation to the letter you sent to the informant, I accept that you have demonstrated insight into your offending and have expressed a degree of remorse towards the victims.
35Your plea carries even greater weight in the current circumstances, where the court is burdened with significant delays as a result of the pandemic.[1]
[1]Worboyes v The Queen [2021] VSCA 169 at [39].
36I take into account the fact that your time in custody has been particularly onerous as your pre-sentence detention has been served during the COVID-19 pandemic. Prisoners are subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. Given the current state of the virus in the community, it would appear that restrictions may remain for some time.
37You have an extensive and relevant criminal history and as such, specific deterrence remains a relevant sentencing consideration. While you may have demonstrated a genuine motivation to turn your life around, given your criminal and drug history, this will not be easy. You will require ongoing support and supervision in the community. For similar reasons, your prospects of rehabilitation require significant commitment from you and therefore your prospects remain uncertain.
38General deterrence is also a paramount sentencing consideration in this instance.
39Mr Jackson submitted that in all the circumstances, a term of imprisonment in combination with a community correction order is a disposition that would meet all the relevant sentencing considerations in this case, submitting that the question is whether the time you have served, some 13 months, is sufficient as the prison component of such an order. Mr Malik summitted that a combination sentence is within the range of appropriate sentences.
40I had you assessed for such an order, however, you were found to be unsuitable as a result of your most recent poor engagement and compliance with your Parole Officer. Nonetheless, the report writer noted your commitment to complying with a correction order if given a further opportunity. As noted by Mr Jackson, you are now at an age and position in your criminal history where you must make significant change or you will be unable to ever reconnect with your family or the community. You have demonstrated a willingness to engage with a rehabilitative order, and as such in my view, the Courts must endeavour to encourage and facilitate that course while there remains some prospect of rehabilitation which will ultimately benefit you and the community. In the circumstances in my view, a combination sentence pursuant to s 44 of the Sentencing Act 1991 is able to meet the applicable sentencing considerations in this instance while providing you with structured support and supervision to continue your rehabilitation in the community.
Sentence
41Mr Knights, could you please stand.
42Derek Knights, on Charge 1, burglary, you are convicted and sentenced to 14 months imprisonment. On Charge 2, damaging property, you are convicted and sentenced to three months' imprisonment. On Summary Charge 6, possession of a controlled weapon, you are convicted and sentenced to two months imprisonment. On Summary Charge 7, commit indictable offence while on bail, you are convicted and sentenced to one month imprisonment. The sentences on Charge 2 and the summary charges will be wholly concurrent with the sentence on Charge 1. Therefore, the total term of imprisonment is 14 months, which after the deduction of pre-sentence detention, will form the prison component of an order pursuant to s 44 of the Sentencing Act 1991.
43In addition to the prison component of the sentence, upon your release you will be placed on a community correction order, with conviction, for a period of two years. While all community correction orders are punitive, the focus of the order will be therapeutic and supervisory. You will be required to complete treatment programs to further address your drug use. You will also be subject to judicial monitoring and supervision.
44Pursuant to s 18 of the Sentencing Act1991, I declare that 415 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore, after the s 18 declaration, the result is a term of imprisonment which complies with s 44.
45Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of two years and six months' imprisonment with a non-parole period of 20 months.
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