Director of Public Prosecutions v Lovett
[2024] VCC 884
•13 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00911
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD LOVETT |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2024, 13 June 2024 | |
DATE OF SENTENCE: | 13 June 2024 | |
CASE MAY BE CITED AS: | DPP v Lovett | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 884 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Plea of guilty - Sentence.
Catchwords: Aggravated burglary – Intentionally cause injury – Make a threat to kill- Possess methamphetamine – Absence of an early plea of guilty – Relevant criminal history – Drug abuse – Guarded prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Dow v The Queen [2022] VSCA 135; Longhurst v The Queen [2021] VSCA 179.
Sentence:Total effective sentence of 1 year and 6 months imprisonment followed by a community correction order for 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | C. Richardson | Office of Public Prosecutions |
For Accused | M. Sturges | Papa Hughes Lawyers |
HIS HONOUR:
1Leonard Lovett, you have pleaded guilty to aggravated burglary and intentionally causing injury on 13 January 2023 and to making a threat to kill and possessing methamphetamine on 18 January 2023.
Summary of offending
2The agreed basis for your guilty plea is set out in the prosecution opening dated 12 June 2024.
3In summary, it involves you on 13 January 2023 going to the home of the two victims intending to confront them about your concerns about their relationship. You entered the home, albeit without force, alone and without a serious weapon, but with a pair of nail scissors in one hand and shoes in the other.
4You made angry threats, once inside, to the woman who you described as your cousin and who you were concerned about because she was pregnant. You got into a fight with her partner Mr Joore.
5I accept that you did not enter the property with an intention to use a weapon, necessarily, but you had an intention to assault. But, but during the assault you injured him intentionally with the scissors.
6You made angry threats against Mr Joore to 'smash' him. All of this happens in an unsophisticated, angry interaction, just inside their apartment.
7I find that your offending was, to a degree, spontaneous, but that you had attended there with an intention to confront them.
8A few days later, on 18 January 2023, you went back to their home, this being a second attendance, which is serious.
9You yelled and shouted and banged on their door and you made threats to kill. Whilst they were not detailed about how, or when, or why, you were angry and outspoken and making very serious threats.
10You hit the door several times and your angry words were overheard by at least one neighbour. Police were called. They arrived and arrested you. You were nearby and had the scissors in your hand.
11They also searched you and found a bag of methamphetamine in your cap. You were arrested and placed in custody, where you have remained since.
12You were interviewed and made no comment about the offences, but made some comments about your reason for being in the area. Those comments were effectively lies.
Procedural history
13Your case was heading for trial, there being issues about whether or not the aggravated burglary could be made out.
14The matter was brought on for a case conference on 12 September 2023. There was discussion between the parties about competing accounts of the assault on 13 January 2023; whether it occurred inside or outside. There was independent evidence of a neighbour, who says that what they saw and heard happened outside.
15There was a report that you used the name ‘Richard’ against a person that you were assaulting at the time, which is not the name of Mr Joore, suggesting that somebody else was involved.
16Mr Joore gave a very different account to police downstairs, when he spoke to them on the day. Whether or not that was out of fear, or whether it was simply because he is an unreliable witness, I am unable to say.
17Ms Kiel, the woman you had referred to as your cousin, has not been able to be found, perhaps because she is unwilling or because she is unavailable to give evidence.
18It is fair to say there were triable issues in your case and it is not for me to say whether or not you would have won or lost those issues at trial. I do find them to be significant issues, the kind of issues that a trial would have been required to settle. Notwithstanding those triable issues, you sought a sentence indication, to determine whether or not there was a basis upon which you could settle the matter and plead guilty.
19That sentence indication was discussed over a number of hearings on 7 December 2023, 25 January and 29 April 2024. Ultimately the indication I gave you was that within a few months from the April date, I would release you and impose a Community Correction Order for 15 months, to allow you to pursue engagement with Wulgunggo Ngalu. You accepted that indication.
20As to victim impact, there has been no victim impact statement filed. Neither Mr Joore nor Ms Kiel have provided one. I accept, however, on the basis of the allegations and the statements that have been made, that the violence that occurred happened in the context of their home and this makes it very serious.
21I accept that you need a safe place to engage in your culture and community. In the same way, others are entitled to and should have their safe place in their home respected. The law requires respect of both of these rights.
22I accept that the impact on Mr Joore and Ms Kiel from this violent event will be significant and long lasting, notwithstanding they have not made a statement about those effects. I also note that Mr Joore suffered an injury for which he needed medical treatment.
23Since your arrest, your experience on remand has been, to a large degree, commendable. You have reinitiated contact with your cousin Christine, who has given evidence in the case before me about providing you assistance and support and provided a letter (Exhibit 2).
24You have also spent significant time engaging in education and programs to prepare yourself for release back into the community, so that you can have a better go at engaging in culture and community.
25The certificates you have got have included a Certificate II in construction, a Certificate III in business and entrepreneurship. You have done other training in construction, Aboriginal drug and alcohol programs, a men's healing program and general self-improvement and drug related treatments programs under the ATLAS scheme. This was not just early in the time you have been in custody, but up until recently, when you have engaged in further Certificate II work on work skills and Certificate III on business studies.
26I am told and accept that that is related to particular work in supporting wildlife and veterinary skills in the bush. I find that the number of courses and the breadth of topics covered by those courses mean that you have tried to and succeeded in, to a degree, considering your future and have planned and prepared for a better future than this offending represents.
27You have engaged with the Koori liaison officer in custody and clearly, your focus on wildlife support is consistent with and, I accept, is part of your regard for Country and community.
28You have also worked in the laundry and as I said, rekindled support with your cousin Christine Lovett. Not only is your coursework significant, but the support from your cousin is important. She is somebody that you grew up with, and had spent time with as a young person. She works for and has experience in agencies that support community and she has lived in a home where she has lived for a long time and has provided you with a home to live in, a room of your own.
29She has got the skills and experience to support you, as you go through the transition from custody to community. The fact that she has given evidence before me of how she can support you and how she knows of your needs is a very significant thing.
30I accept that you have developing, if not complete, insight, into your offending and the effects that drugs have on you.
31As to your guilty plea, I accept that it is not an early plea and it was not made in the Magistrates' Court, but rather, in this court. I also accept, however, that it has significant use or value. The issues that I set out in relation to the trial that you could have run were significant and your guilty plea means that the trial did not have to run. I take the view that this represents you looking to your future.
32You have indicated a willingness to sign off and agree to a Community Correction Order and that that involves you being accountable to me and an agreement to engage in the programs that it will require. As you have heard me discuss with counsel, that includes engagement in the learning place and you being able to go there and enjoy the benefits of Wulgunggo Ngalu, so that you can see a positive future for you in community.
33I see that as important and your willingness to agree to that on the Community Correction Order seems to me to be your bargain with the court that you also see it as important. This is a valuable thing.
34As to remorse for what you did, I accept that this is complicated. You are a Koori man with strong views about culture, I accept that. Part of your mistake on this occasion was to use or let those strong views spill over into violence - violence against two people in their home. You understand that this court denounces that and must sentence you for it. I also acknowledge, however, that the strength of your views about community and family are important and they are positive things.
35I am prepared to accept that your view about your cousin's relationship on the day reflected both things, your positive commitment to community and family, but also the inappropriate decision to let that be expressed in violence. I find that your willingness to work on a more positive involvement in community in the future reflects a good element of the man you were on that day.
Personal circumstances
36As to your personal history, I accept that you had a terrible start to life, but in your very early years, you were taken in and loved and supported by extended family throughout and into your teenage years.
37One of the people who you lived with and were supported by is now your cousin Christine, who you grew up with. She has reconnected with you over the last 18 months, visited you in prison and contacted you by phone and as I said, you plan to go and live with her. She can support you, as you make your way.
38Part of your history, of course, are the criminal offences you have committed in the past. I will not punish you again for what you have done before. I accept, however, that your criminal history is relevant and lengthy.
39In particular, as the prosecutor has said, you did an aggravated burglary in 2019, or at least you were sentenced for it then, but I also accept it was a much more serious offence – in the middle of the night and in the circumstances set out by Judge Carmody's reasons – to which I have had reference. I note that Judge Carmody said that your prospects of dealing with your lot were fair at the time, but he acknowledged that drug use was a problem, as it clearly was on this occasion.
40The view I have taken of that history and of the 2019 sentence, is that you have problems with drugs, but when you are not drug affected, you can and do focus on positive things. Clearly, you had fallen back into drugs in January 2023 and that forms part of the context of your criminal history and also what happened then. But, you have proven, in my view, that you can address yourself to remaining drug free and focused on positive futures, because of what you have achieved in custody.
41As to your education, you attended university, at least for a while and as demonstrated by the certificates that I have been provided, you have an active mind. This is a good thing. It means that you have a capacity to learn and to think through your future and your involvement in the world around you. To me, that is what your certificates and your interests that you have expressed shows. That is relevant to your prospects for rehabilitation.
Sentencing issues
42As to sentencing, the maximum penalty for aggravated burglary is 25 years' imprisonment, for intentionally causing injury is 10 years, for a threat to kill it is 10 years and for possessing methamphetamine it is 1 year.
43I am told and accept that on Charge 3, you are to be sentenced for the threat to kill as a serious offender, because you were gaoled for a similar charge in 2017.
44I have to take into account the objective seriousness or gravity and your responsibility or culpability for what you did.
45The aggravated burglary offence, in my view, is the most serious of the four that you have pleaded guilty to.
You went in the front door of somebody's home. You carried a pair of scissors with you and got into a fight. Whilst you were not in company, and it did not occur late at night, you did know who was inside and you intended to berate and assault them.
46They had grounds, because of your previous contact with them, to be afraid of you, albeit your previous contact was not always violent or rude. Your role in the offending was as the principal offender. You offended in that way due to your own views and your own intoxication.
47The explanation given, based on your concerns for your cousin and your strong views about family, are a helpful explanation, but they do not justify what you did. You should not have acted out in that way, but I note that your conduct was not for profit, or for some other criminal purpose.
48You must be sentenced to deter others, for your conduct to be denounced and for you to be punished. These are important and that is why I will impose a term of imprisonment on you.
49The significance of your history is, that I need to give weight to specific deterrence and community protection. Community protection, in fact, in relation to Charge 3, is the most important and primary feature of sentencing you. In my view, in your circumstances, community protection can be achieved in a more reliable way by you engaging in the programs that you have agreed to do. That is, to live with your cousin and attend at Wulgunggo Ngalu.
50In my view, given your history and the number of times you have been in custody and the nature of your offending and what you have done over the last months in custody, that is the better course to achieve what is required in terms of community protection. I accept that that is a risk. It is a risk for you, but it is a risk for the community, but in my view, that risk can be managed by an order that I will make, including regular returns to court, by way of accountability through judicial monitoring.
51I have considered the question of totality, including how that relates to the serious offender provisions and I will make orders for concurrency and cumulation, proportionate to your offending, but also keeping in mind the important and primary goal on Charge 3 or ensuring progress to rehabilitation and protection of others.
52To that end, I have considered whether on Charges 1 and 2, you should receive an aggregate sentence. I have considered the charges that occurred, that the offences occurred close in time, that they were part of same transaction, that the Charge 1 aggravated burglary is based on an intention to assault and Charge 2, intentionally causing injury, is the assault that resulted from that intention.
53I am conscious of the issues for trial, albeit your guilty plea stands alone and your guilty plea recognises an acceptance of what was alleged in the Crown opening, but given the involvement of all of those issues in the one short incident, I have considered the matters in s9 of the Sentencing Act and I regard an aggregate sentences on Charges 1 and 2 to be appropriate.
54As to your rehabilitation and your prospects, regarding your work in prison, including your cultural engagement and desire to further that, what you have already achieved through the courses, your developing insight into ongoing problems about drugs and the risk factors that are involved, including the assessment by community corrections, I find your prospects for rehabilitation to be guarded, but not negative.
55The submissions of the parties were, particularly as to supervised release.
56From the prosecution, that a non-parole period-type sentence should be imposed, but I note in discussions, the candid and appropriate, in my view, concession, that there is a degree of similarity between a combination sentence with supervised release and the kind of release under parole.
57Of course, I am not suggesting that the prosecution position was that a combination sentence was the appropriate sentence, but with respect, the prosecutor's concession that there is a similarity between the types of sentences, given the time you have served, is an appropriate one.
58Your counsel Mr Sturges, indicated that a combination sentence permitting you to be released onto a Community Correction Order, so that you could engage at the learning place at Wulgunggo Ngalu was the better course.
59With respect, that submission could only be made properly after you had served a significant time in custody, which you had. I took a different view at an earlier stage in the sentence indication at the end of last year, when that significant time had not been served, but you now have.
60To that end, I sought an assessment by Community Corrections. That assessment report has been provided (Exhibit A).
61Perhaps surprisingly to you, the assessment was that notwithstanding you are a high risk of further offending, they found you to be suitable for a Community Correction Order. In the past, it has not worked for you and you have breached them, but significantly, Corrections now find you suitable for such an order.
62They report that you engaged well with the assessment process. They formed the view that you expressed some insight into your offending, that you were candid about your background, that you were seeking to reengage and reconnect with community. They noted your study in the courses and your interest in veterinary and wildlife work. Of course, they know about your long drug history and your history with Corrections, but notwithstanding all of that, they found you suitable and supported you to be released on a Community Correction Order. I take that into account.
63I have considered in a general sense the cases provided to me by the prosecution, the cases of Dow[1] and Longhurst[2] and whilst they are helpful to understand the kinds of issues that arise, as I have tried to set out in these sentencing reasons, for aggravated burglary and similar offending, I have to weigh up, based on the facts about you and your case, what the appropriate sentence is. I have done that and come to the view that a combination sentence is appropriate.
[1] Dow v The Queen [2022] VSCA 135.
[2] Longhurst v The Queen [2021] VSCA 179.
64I note the summary charges that were brought to this court from the Magistrates' jurisdiction, have been withdrawn and I strike them out.
65I sentence you as follows:
On Charges 1 and 2 – 15 months' imprisonment in combination with a
Community Correction Order (aggregate sentence);
Charge 3 – 8 months imprisonment with 5 months to be served
concurrently plus the same Community Correction Order as the
aggregate;
Charge 4 - 1 month imprisonment to be served concurrently.
66The Community Correction Order will be for 15 months, as I indicated and to which you agreed previously, with conviction, with the following conditions beyond the mandatory ones:
You engage in supervision, so attending supervision appointments with Corrections;
You are to be assessed and engage, if necessary, in treatment for alcohol and drug use and in support of your own mental health;
You are to be assessed for programs and engage in programs including, particularly, attendance at, or engagement with Wulgungoo Ngalu, the Learning Place;
You are to engage in judicial monitoring.
67The total effective sentence is 1 year and 6 months, plus a Community Correction Order of 15 months.
68I declare that you have served 511 days of presentence detention and I direct that this be reckoned as a period already served under the sentence.
69In accordance with s6AAA of the Sentencing Act, if you did not plea guilty, but you were found guilty after trial, I would have imposed 3 years and 8 months and fixed a non-parole period of 2 years and 4 months.
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