Director of Public Prosecutions v Larkin

[2022] VCC 1775

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

CR 22-01307

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW LARKIN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2022
DATE OF SENTENCE:	15 September 2022
CASE MAY BE CITED AS:	DPP v Larkin
MEDIUM NEUTRAL CITATION:	[2022] VCC 1775

REASONS FOR SENTENCE
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Subject:Aggravated burglary. 

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. James	Office of Public Prosecutions
For the Accused	Ms V. Drago	Prince Legal

HER HONOUR:

1Matthew Larkin, you have pleaded guilty to one charge of aggravated burglary.  The maximum penalty for this offence is 25 years' imprisonment.

2The circumstances of your offending is set out in the summary of prosecution plea opening, Exhibit A dated 25 August 2022.

3

As I indicated in the course of the plea hearing, the circumstances leading up to this offending are somewhat unclear, however it would appear that prior to this incidence Emma Woods and Rory Mavity were out to dinner with some of

Ms Woods' family and friends, including one of your co-accused, Jayden Excel.  Once Mr Mavity had left the restaurant to return to his apartment, Ms Woods' family and friends encouraged her, that is Ms Woods to leave Mr Mavity with them fearful she was being abused by him.

4Ms Woods called Triple 0 and was told to call again if anything else occurred.  After she had returned to her apartment, her sister messaged her indicating police would be called and she received another message from Excel asking her to come out and talk to him.  Approximately five minutes later there was a loud aggressive knock at the door of their apartment.  Mr Mavity went to open the door, thinking it was the police, but as he opened the door he recognised Excel.  There were two other males with him who he did not know, one of them was you.

5

CCTV shows you attending the apartment with three other people including your co-accused, Excel and Ben Curran and Natalie Halligan, Excel's mother.  One of you listened for voices in the apartment and when the correct apartment was located, one of you knocked on the door which was opened.  Excel then pushed the door open and entry was obtained for a brief period before Mr Mavity and

Ms Woods pushed the door back, forced it closed and locked it.

6Excel and Curran then began kicking and punching the door, each taking turns, whilst Ms Woods and Mr Mavity resisted.  You yelled for Mr Mavity to come outside whilst he screamed for help and for someone to call the police.  Mr Mavity later told police he saw two offenders each armed with a knife, one of whom was you.  That is the circumstances regarding the aggravated burglary.

7Neither party opposed me viewing the CCTV footage that was provided to me after the plea hearing.  In your record of interview you admitted that you had been contacted by Excel and were told that his mother's friend was being abused by her boyfriend, and that he wanted you to join him to pay this guy a visit.  When you went to the apartment you could hear some intense screaming inside and decided to kick the door.  You had no intention to hurt anyone, you just wanted to know what was going on.  You should not have been there because it was not your business to be there and it was a stupid decision.

8You did not want to get the door kicked in, but you were provoked thinking that a girl was being abused by her boyfriend.  You regretted your actions and recognised that they were as you described, disgraceful.  You admitted that you had a knife and though you may have waved it around, you had no intention to hurt anyone with it.  The end goal was to remove the girl from a situation where you and your co-accused thought she was in danger.

9I was informed that your co-accused Curran and Excel were remanded on their arrest, but that Excel was granted bail on 8 April 2022.  A committal was conducted on 26 August and at this stage their matters are both going to trial.

10I received victim impact statements.  Ms Woods felt very hurt, fearful and angry and still does not understand why this happened.  She has difficulty sleeping and has been diagnosed with anxiety, depression, stress and PTSD requiring some psychological assistance.  Mr Mavity feels hurt and frustrated.  He feels paranoid leaving his home.  His mental health issues including difficulty sleeping, stress, anxiety, PTSD and depression have been exacerbated by this incident.

11

As to your personal circumstances, you are currently aged 34.  You enjoy strong family support from your parents and your sister.  In 2005, after completing

Year 10, you began a carpentry apprenticeship.  You have worked across various companies in the building industry as a means of progressing your skill set and career since that time.  You began your own building company in around 2011.  You then moved into a more niche area of concreting before moving interstate to Perth in or around late 2014 to assist in building a sporting stadium.  You worked as a foreman on that site for some five years. 

12You returned from Perth to Melbourne on Christmas Day in 2019.  It marked the end of a difficult relationship with your then fiancé.  I was informed your previous offending in Perth related to that relationship and was directly related to your partner's mental health instability and issues.

13Upon your return you resumed working and were able to work during Melbourne's lockdowns in 2020.  You left that job towards the end of 2020 and at this time your substance abuse had increased.  You first used substances at about the age of 19 on a recreational basis.  However, by 2021, and the breakdown of your relationship in Perth, you were using methylamphetamine more regularly.  You lacked any real routine and were primarily associating only with those in the same predicament as you.

14I was informed that you have remained abstinent from drugs since your remand in February 2022.  Is it actually March?

15MS DRAGO:  Yes.

16HER HONOUR:  Yes.  Sorry, since your remand in March 2022.

17You intend to resume work when you are released from custody and though you have no prospective employment you are confident that you will be able to obtain work, given your skills.  You suffer from no mental or physical health issues.  You have a limited and a irrelevant criminal history.  This is your first stint in custody.  I was informed that you have been a model prisoner whilst on remand and are currently employed in maintenance.

18Conditions in custody as a consequence of COVID have been difficult and you have endured protracted and ongoing lockdown issues throughout your time on remand.

19As to your circumstances at the time of the offending, you were living with both your co-accused.  Excel contacted you and advised that he had been out for dinner with his mother and that his family friend Ms Woods was being abused by her partner.  He requested you meet him in Carlton at Ms Woods' apartment to assist her.

20When you arrived, Excel, his mother and Ms Woods's mother were in the foyer of the apartment building and allowed you entry into the building and told you the floor level where the apartment was situated.  The aggravated burglary took place at the point in which entry was gained into the apartment for a brief period.  It was submitted your offending lacked any pre-meditation or planning and that you had thought you were assisting Ms Woods.

21You participated in a police interview and were fully cooperative.  You made full and frank admissions as to your conduct, detailing to police your understanding of the situation, insight into the impact of your use of substances may have had on your reactions and intentions at all relevant times.

22Your counsel highlighted aspects of your interview where you recognised the incident was totally unplanned and stupid.  You went there to help your friend and didn't really have any plan.  The goal was to remove the girl who you thought was in danger.

23You have pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has the utilitarian benefit.  There is an especially high utilitarian benefit to pleas of guilty, given the disruption to courts caused by COVID-19 and the impact that this has had on the administration of justice in this state.  The victims have not been required to relive this traumatic incident by giving evidence at trial.

24I accept your plea of guilty is indicative of remorse and consistent with your cooperation and admissions made to police.  This is your first time in custody.  You spent time in the cells at Heidelberg and in isolation at MRC for quarantine purposes.  I was informed that since being at Fulham you have spent approximately 65 days under lockdown conditions.  You have been limited in the work you can do in custody.  You were able to be employed after three months on remand as a billet.  You then began working in maintenance and have continued this work.  You have been unable to access any therapeutic courses but have been able to access the psychologist on three occasions.

25I accept conditions in custody have been more burdensome because of COVID and take that into account.  I also accept the delay in this matter resolving, not attributable to you has caused you additional stress and anxiety.

26

Just prior to delivering sentence I received a character reference from

Ms Christine Stewart who is your aunt.  I take that material into account and accept that this conduct was out of character for you, which is also consistent with your limited prior history.

27Your counsel submitted your excellent prospects for rehabilitation, relying on strong family support, consistent employment as a skilled tradesman and positive future employment prospects.  Your behaviour in custody whilst on remand coupled with this being your first time in custody, limited prior criminal history, plea of guilty and level of cooperation, I accept that your rehabilitation prospects are good.

28

As to the objective seriousness of this offending, the prosecution highlighted some features of it, namely you taking a knife with you to the apartment, that you resorted to this violent confrontation under some misguided view as to the danger of

Ms Woods posed by Mr Mavity, that your actions were not justified and you were not provoked or even involved, rather you willingly went to assist another.  You went armed with two other people to confront Mr Mavity.

29The offending occurred in the home of individuals who are entitled to feel safe in their homes, and the impact on them has been set out in their victim impact statements.

30Your counsel highlighted that there was limiting planning or pre-meditation and that the incident took only a very short time.  Reference was made to your responses in the record of interview and the clear recognition by you, that you had made a stupid decision to be involved.

31The maximum penalty of 25 years reflects the seriousness with which parliament views this offence.  Your decision to be involved in confronting someone in their home and taking a knife with you is likely to be explicable by your drug use at the time.  That does not excuse your behaviour, though does provide some explanation for it.  I accept that the incident was very brief and involved limited preparation and planning.

32It was conceded that for offences of this nature, general deterrence and denunciation play a role in the sentencing exercise.  Your lack of relevant criminal history, good rehabilitation prospects and the impact of your first experience in custody is such that specific deterrence plays a lesser role.

33Your counsel submitted that given you have spent approximately six months in custody, that I should impose a term of imprisonment of that length, namely time served.  It was submitted that no other penalty such as a Community Correction Order should be imposed.  However, in the alternative, it was submitted that I could impose a term of imprisonment with a CCO, with you not being required to serve any more time in custody from the day of sentence.

34The prosecution submitted that a term of imprisonment was warranted, and conceded that a term of imprisonment coupled with the CCO was within property sentencing range.

35In the course of the plea hearing I expressed concern about your drug and mental health issues and your need for support in the community.  I had you assessed for Community Correction Order.  I received a Mental Health Advice and Response Service letter dated 12 September.  It concludes that you do not require ongoing assessment or treatment in your mental health to be court mandated in order to promote your wellbeing or reduce your likelihood of re-offending.

36I also received a report from Corrections that addressed the issue of whether you required drug treatment or counselling and offence specific programs.  As I indicated in the course of the plea your drug use was a significant matter, and although you have been abstinent over the last six months whilst in custody, I do propose to impose a Community Correction Order, with a condition to assist you in respect of this issue when you are in the community.

37I do not consider it necessary to impose a community work condition, given the time you have spent in custody.  The CCO will be for a period of 12 months with the conditions as recommended.  That being in relation to supervision, drug treatment and offence specific treatment. 

38The CCO will be for a period of 12 months.

39In respect of the aggravated burglary you are convicted and sentenced.  Could I please be told what the PSD is?

40MR JAMES:  It is 176 days, Your Honour.

41HER HONOUR:  All right.  What I am going to do is convict and sentence you to a period of 176 days imprisonment.  And at the end of that term of imprisonment to impose a Community Correction Order for a period of 12 months with those conditions that I have indicated.

42Mr Larkin you need to understand and I'm sure your counsel has explained this to you that effectively that means that you'll be released today on a Community Correction Order.  If you breach that order, that is by the commission of another serious offence, you'll come back before me on a breach and I will have to resentence you in respect of this matter.  Do you understand that?

43OFFENDER:  Yes.

44HER HONOUR:  I think the key for you Mr Larkin, is to stay away from the drugs.  And I hope it all goes well for you.  Thank you.

45So, pursuant 6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of two years.  Thank you.

46MR JAMES:  As the court pleases.

47MS DRAGO:  Court please.

48HER HONOUR:  Anything else?

49MS DRAGO:  Nothing further Your Honour.

50MR JAMES:  No, Your Honour.

51HER HONOUR:  Thank you.  Lisa could you just stay on the meeting please.

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