Director of Public Prosecutions v Luttet
[2017] VCC 625
•8 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication | |
Case No. CR-16-01807
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE LUTTET |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2017 | |
DATE OF SENTENCE: | 8 May 2017 | |
CASE MAY BE CITED AS: | DPP v Luttet | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 625 | |
REASONS FOR SENTENCE
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Subject: Aggravated burglary
Catchwords:
Legislation Cited:
Cases Cited: Hogarth v The Queen [2012] VSCA 302
Sentence: 2 years and 4 months imprisonment 16 month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Stefanovic | |
| For the Accused | Ms S. Condon |
HER HONOUR:
Charges
1 Wayne Ashley Luttet, you pleaded guilty to one charge of aggravated burglary. The maximum sentence for this offence is 25 years' imprisonment.
Circumstances of offending
2
On 17 March 2016 Dean Schultz and Jeffery Morton were at their home in
St Albans Road, Breakwater. You knew both Schultz and Morton.
3 You were smoking cannabis with Schultz when Morton asked you to leave the house. You became aggressive and began to shout, "I'm going to kill you both, you two are both dead." Morton grabbed you by the arm to lead you towards the door, however you both fell on the ground and began to wrestle. Morton was thrown against the couch and his eye was gouged.
4 In relation to the events leading up to the aggravated burglary, Morton was examined at the Geelong Hospital on 17 March 2016 and was found to have fractures and a compressed vertebral fracture which could have been consistent with the events in combination with underlying conditions.
5 You left the property but returned later at about 5.30PM and gained entry by breaking the glass at the rear door of the property. Morton observed you standing at the rear door holding an object he believed was a piece of wood. He left through the front door as you entered through the rear. Morton went to a neighbour and called the police. When the police gained entry to the premises, they observed you striking a cigarette lighter approximately ten times over the four gas stove burner which you had turned on.
6 While the prosecution case is that you entered the house with the intention of causing damage, it was not suggested that you entered with the intention of lighting the gas burners. When you were arrested you stated that you had lived at the house and that you tagged, "3219" on the lounge room wall with spray paint. You were found to be unfit for interview.
Personal circumstances
7
Turning to your personal circumstances, they were contained in a report from Dr Danny Sullivan dated 15 October 2016. You are 46, you were born and raised in Geelong and you have two sisters. Your parents' relationship was conflictual and they separated when you were around 15. You were abused by a cousin when you were only a child. You left school halfway through
Year 11, and while you commenced several apprenticeships, you failed to complete any of them. You have had an intermittent and sporadic work history since then.
8 You started drinking alcohol and using drugs when you were very young. Your extensive criminal history is mainly for thefts and burglaries and reflects the fact that drugs continued to be an issue in your life. On the day of your offending you had used both ice and cannabis. You gave Dr Sullivan a history that you had been detained in psychiatric hospitals on a number of occasions since 1988, however, he was of the opinion that it was unlikely that you had a significant or sustained psychotic illness and he considered that, at the time of your offending, you were suffering from drug induced psychosis.
Sentencing submissions
9 In mitigation of your offending, your counsel relied on your plea of guilty by which you indicated an acceptance of responsibility for entering the property with the intent to damage it and to having a knife with you at the time. It was submitted that your offending was less serious than the type of aggravated burglary discussed in cases such as Hogarth[1] where a number of offenders enter a property with the intention of assaulting the occupants. Your counsel also relied on the fact that, while you have a lengthy criminal history, you do not have a history of committing violent offences.
[1]Hogarth v The Queen [2012] VSCA 302
10 While it was acknowledged that a sentence of imprisonment was appropriate, he submitted that it would be in the interests of yourself and the community that you serve part of your sentence in the community. It was also submitted that you had already commenced your rehabilitation by not using drugs while in custody. The prosecutor, however, called for an immediate sentence of imprisonment.
Sentencing remarks
11
In sentencing you, I have taken into account all the mitigating factors referred to by your counsel, you are entitled to a discount for your plea of guilty and
I have given you one. I have also taken into account the principle of rehabilitation and that you have ceased using drugs while in custody. However, even taking these mitigating matters into account and accepting your counsel's submission that your offending is not in the same category as cases such as Hogarth's, both specific and general deterrence remain important sentencing considerations.
12 With respect to specific deterrence, you have a long criminal history going back to 1988, you have failed to comply with a community corrections order back in 2005 and you breached a suspended sentence. As to general deterrence, people have the right to feel safe in their own homes and others must be deterred from committing aggravated burglaries.
Sentence
13
I consider that a sentence of imprisonment is the appropriate sentencing disposition. On the charge of aggravated burglary you are sentenced to two years and four months. I fix a non-parole period of 16 months. I declare
387 days of pre-sentence detention.
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HER HONOUR: Were there any ancillary orders?
MR STEFANOVIC: Yes, Your Honour, just as to the pre-sentence detention, that figure will need to rise given that it has been another weeks or nearly four weeks, apparently, since the sentencing hearing.
HER HONOUR: So, what would that be?
MR STEFANOVIC: The figure now as agreed between the parties is 414 days to be taken into account.
HER HONOUR: That means that, if you are in fact granted parole, you have not got much longer time to serve if my maths are correct. Yes.
OFFENDER: Thank you.
MR STEFANOVIC: And the ancillary orders, Your Honour?
HER HONOUR: Yes. The ancillary order is, I grant a disposal order. That was in relation to the knife. Was that the only order sought?
MR STEFANOVIC: Yes. There was no forensic sample because the sample was taken during the investigation process and that will be automatically retained as per the legislation.
HER HONOUR: Yes.
MR STEFANOVIC: We no longer ask for those. The last matter is 6AAA of the Sentencing Act given that he pleaded guilty.
HER HONOUR: Yes. I'll think about that while someone hands me a blue biro so I can hand the disposal order. Yes, it would've been three years and six months to serve 24. Is there anything else arising from this sentence?
MR STEFANOVIC: No, Your Honour.
MS CONDON: There's nothing further.
HER HONOUR: Yes, Mr Luttet, you have got a long history but you have been making efforts to cease your drug use while in jail. Keep up the effort, you're still – there's still lots of things to do in life if you can get off the drugs.
OFFENDER: Yeah, I'm planning to go to rehab, Miss, yeah.
HER HONOUR: All right. Well, I wish you every success with rehab. All right.
OFFENDER: Yeah, thank you.
HER HONOUR: All right, bye.
OFFENDER: Thank you.
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