Director of Public Prosecutions v Luke
[2022] VCC 276
•9 March 2022
| IN THE COUNTY COURT OF VICTORIA AT GEELONG AND MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 21-02117
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY JOHN LUKE |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne and Geelong |
DATE OF HEARING: | 20 January 2022 |
DATE OF SENTENCE: | 9 March 2022 |
CASE MAY BE CITED AS: | DPP v Luke |
MEDIUM NEUTRAL CITATION: | [2022] VCC 276 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Aggravated burglary, intentionally damage property- plea of guilty – COVID-19 Pandemic
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Boulton [2014] VSCA 342
Sentence: Community Correction Order – 2 years; supervision, 150 hours unpaid community work, treatment and assessment for mental health conditions, to be credited against community work hours, Forfeiture and Disposal Orders
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions, Ms E. Phillips |
For the Accused | Mr H. Rattray | Ranier Martini & Associates |
HIS HONOUR:
1Bradley John Luke, you have pleaded to one charge of aggravated burglary and one charge of intentionally damaging property. The facts of your offending are set out in Exhibit A, the summary of prosecution opening. I was informed by your counsel that I could treat that document as an agreed statement of fact, and I incorporate it into these reasons for sentence, and sentence you on the basis of the facts set out therein.
2Very briefly stated, on Saturday 15 May 2021 you attended twice at the home of your ex-partner, Jackie Dyer, in Corio. On the first occasion at about 5.20 pm you knocked and purported to be the police, and left when the occupants refused to open the door.
3Two hours later you returned with a female friend. She went to speak to your ex-partner and Ms Dyer was in the company of her new, younger partner, Joseph Matthews. You grabbed a large metal pole and commenced hitting the security shutters. You then smashed the kitchen window and climbed into the house.
4You cut your hands and feet in the process. You forced your way into the lounge room, waving the pole around and confronted Matthews. He managed to disarm you and you left the house and drove away. You went to the Corio police station to hand yourself in.
5You were taken to Geelong Hospital for treatment for the cuts you sustained and you were interviewed the next day. You made fulsome admissions to the police. You were remanded in custody until you were bailed on 2 July 2021.
6You pleaded guilty at the committal mention. Dyer and Matthews did not wish to make victim impact statements. Your friend, Danielle Andrews, who went to Plantation Road with you, completed a victim impact statement.
7She was traumatised by your behaviour. She feels ostracised because she told police what you did. She suffered injuries from your fight with Matthews and is scared and worried, including worried about you and your daughter.
8She blames herself for what occurred and believes you used her to get at Matthews. I take her victim impact statement into account in sentencing you. You have admitted a very limited prior criminal history. On 28 June 2019 you were released on a bond without conviction for the offence of unlawful assault.
9On 29 January 2021 you were fined $1200 for persistent contravention of a family violence order, unlawful assault and recklessly causing injury. I was informed that that involved the same victim as the victim in this case.
10Turning to your personal history, you are now 28 years of age, being born in November 1993. Your parents separated when you were four years old. Your mother remarried and you have two younger stepbrothers. You regard your stepfather as your real dad.
11You grew up in Corio in a happy, extended family. You were a good student with a sporting involvement before leaving school at Year 10 to complete a diesel mechanic apprenticeship. You also obtained a certificate in heavy road transport.
12You have been fully employed in the transport industry since you were 16. You are currently the workshop manager at a transport company earning approximately $125,000 per annum. You purchased your own home seven years ago, have a $240,000 mortgage on a property valued at approximately $400,000.
13You have been involved in three personal relationships. The first lasted seven years from 2010. The second with Jackie Dyer, who you were together for three years, and significantly you and Jackie have a three year old daughter, Layla.
14The Department of Human Services' involvement has seen Layla placed in the care of your mother and you enjoy regular contact with your daughter. Your relationship with Ms Dyer deteriorated and conflict became common, as illustrated by your prior criminal history.
15Your prior criminal history arises from the conflicted relationship. Your current offending occurred in the context of your inability to accept Ms Dyer's involvement with Mr Matthews.
16Since your offending you have moved on. You are now in a new relationship which is proceeding well, at least you were at the time of the plea. You developed mental health issues with anxiety and depression since 2018. These issues arose from your relationship issues with Ms Dyer, and you have had psychological counselling, and been successfully medicated for your conditions.
17Dr Lindquist in Exhibit 3 refers to your medication. Kristy Berryman, the team leader at Bethany Men's Family Violence, provided an email, Exhibit 6, which reads:
'I confirm that Mr Luke completed the men's behavioural change program on 25 March 2021. During this time Mr Luke demonstrated insight and understanding, participating and contributing to every session. He has a good level of self-disclosure throughout his engagement in the group and attended 27 sessions. He has since linked back with our programs and completed some 1.1 family violence education sessions. He has three individual sessions and regular phone contact with a worker in between these sessions. Mr Luke is currently on a wait list for a men's behavioural change program.'
18You have demonstrated remorse for your conduct, acknowledging that it is clearly unacceptable. Psychologist, Patrick Newton, reported in Exhibit 2 that you demonstrate persistent symptoms of reactive depression, your depression is primarily the result of your legal issues. You are concerned about damage to your relationship with your daughter should you be returned to custody.
19In paragraph 32 of his report Mr Newton states:
'It is well accepted that depressive conditions have a significant effect on the clarity of the thinking process of those who suffer them. Most notably such a condition is slow cognitive processing and make it difficult for the sufferer to exert the mental energy required to undertake problem solving and other tasks with their typical level of ability. As a result there is a tendency for individuals to manifest an unusual level of impulsivity. In my opinion it is almost certain that Mr Luke was suffering from these effects at the time of his offending.'
20He concludes at paragraph 45:
'Since his release from remand Mr Luke has sought effective medical treatment for his depression, engaged in extensive offence related intervention, continued in stable employment and consolidated himself in personal circumstances with his family. The positive progress he has made in these endeavours suggests that he has been genuinely motivated to address the issues which were extant in his life at the time of his offending'.
21Since your offending you have been involved in the full time care of Layla. She spends two nights a week with her mother and the rest of the time as I understand with you. Your mother, Sharon Luke, gave very impressive and helpful evidence at your plea.
22She said you had been going well since your release on bail, you have been getting assistance as required. You resided with your mother for five months as part of your bail conditions. Ms Luke described the difficulties Layla had when you were on remand and is concerned as to Layla's welfare should you be returned to custody.
23In sentencing you I take into account a number of matters in mitigation. Firstly, your pleas of guilty. Those pleas of guilty were entered at an early stage. They have even greater value given the current COVID-19 pandemic.
24You have assisted the course of justice, demonstrated remorse and spared your victims the ordeal of a criminal trial. Secondly, I take into account your limited prior criminal history. Thirdly, I accept that you have a strong work ethic and a solid work history.
25Fourthly, your depressive condition moderates the need for general deterrence and denunciation of your offending. In addition that depression would make any time in custody for you more onerous for you.
26Fifthly, I take into account the difficulties your daughter, Layla, would experience should you be imprisoned again. Not only would she suffer but her welfare concerns would make your time in custody more onerous for you.
27Sixthly, you have good prospects in my view of rehabilitation. You have demonstrated insight and remorse in undertaking counselling and anger management.
28Seventhly, if you are imprisoned you will lose your employment and your home. You will not be able to continue to pay the mortgage on the home of you and your daughter.
29Eighthly, you and your partner are expecting a child in June this year.
Mr Moore, the learned prosecutor, correctly pointed to the serious features of your offending. It involved domestic violence and you have a significant relevant prior offence.30Whilst no one was injured it is a terrifying incident for those who were involved. You carried and used a weapon, a metal pole. People commonly are sentenced to terms of imprisonment for offending such as yours.
31The Court of Appeal has regularly given advice to judges of this court as to the serious nature of the offence of aggravated burglary and the need to impose substantial terms of imprisonment in many cases.
32Principles of general deterrence, specific deterrence and denunciation are clearly important sentencing factors. However, in R v Boulton [2014] VSCA 342[1] the Court of Appeal said at paragraph 2 in considering the possibility of imposing community corrections orders that:
'The CCO is a flexible sentencing option enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of offending and to minimise the risks of reoffending by promoting the offender's rehabilitation.'
[1]R v Boulton [2014] VSCA 342
33At paragraph 131 the court concluded:
'It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences and some categories of homicide. The sentencing judge may find that in view of the objective gravity of the conduct and personal circumstances of the offender a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony, just punishment, while affording the best prospects for rehabilitation.'
34For the reasons previously set out I am of the view that such a disposition is appropriate in your case. I have had you assessed for a community corrections order and I will mark the extended pre-sentence assessment dated 24 February 2022 as an exhibit on your plea, and you have been found suitable for such a disposition.
35Are you prepared to undergo a community corrections order?
36OFFENDER: Yes, Your Honour.
37HIS HONOUR: On both charges I will order that you be released on a community corrections order for a period of three years with special conditions that you perform 150 hours of unpaid community work. I order pursuant to s48C(a) that the programs you undertake can be credited against the hours you have to undertake.
38The second condition is that you undergo assessment and treatment for mental health issues, thirdly that you participate in programs to reduce offending. That document will be prepared and you will have to sign it when you first appear at Corrections.
39You have to appear at Geelong Community Corrections Services within
48 hours, so get there tomorrow if you can, and they will have you sign this order. You need to understand that for three years you are tied to me.40If you breach this order you will leave me with no choice but to put you back in custody. You have got a good job, you have got a daughter and you have got a supportive mother. You have got to stop getting yourself involved in the legal system.
41If you come back to me you will not like it. Do you understand?
42OFFENDER: Yes, Your Honour, 100 per cent.
43HIS HONOUR: Are there any other orders, Mr Moore?
44MR MOORE: No, Your Honour, I believe I heard the order and that's all.
45HIS HONOUR: They are extensive reasons that your instructor can fill you in in due course.
46ASSOCIATE: Sorry, Your Honour, I believe there was a forfeiture and disposal order.
47MR RATTRAY: Yes, that is correct.
48HIS HONOUR: I will make the forfeiture and disposal orders sought by the prosecution. Exhibit C will be that assessment that I referred to in my sentencing remarks.
49MR RATTRAY: Your Honour, I note the orders, but if those forfeiture and disposal orders could be made by consent, Your Honour, and nothing further from me.
50HIS HONOUR: Thank you, Mr Rattray. I have not ordered judicial monitoring because the report said it was not necessary so I hope I do not see you again. I will terminate the link.
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