Director of Public Prosecutions v Madden
[2018] VCC 1470
•12 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00929
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOM MADDEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2018 | |
DATE OF SENTENCE: | 12 September 2018 | |
CASE MAY BE CITED AS: | DPP v Madden | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1470 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing
Catchwords: Home invasion (steal) – person present contrary to s77A of the Crimes Act 1958 and theft contrary to s74 of the Crimes Act 1958 – related summary Charge 9, assault with a weapon – relatively youthful offender – plea of guilty – combination sentence imposed – 12 month term of imprisonment to follow a Community Correction Order to follow of 3 years’ duration – Younger v R [2016] VSCA 1321 approved in Williams v R [2018] VSCA 191
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Hoare (Plea) Ms C. Tulloch (Sentence) | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Dunn QC (Plea) Ms B. Coath (Sentence) | Pica Criminal Lawyers |
HER HONOUR:
1 Tom Madden, you have pleaded guilty before me to one charge of home invasion (steal) – person present, contrary to s77A of the Crimes Act 1958, one charge of theft, contrary to s74 of the Crimes Act 1958 and a related summary charge, Charge 9, unlawful assault with a weapon, namely a sledge hammer and an axe.
2 The offending is serious and that is in part reflected by the maximum penalties that I have prescribed by law and the penalties are as follows:
Charge 1 – the home invasion, 25 years’ imprisonment or 3,000 penalty units;
Charge 2 – theft, 10 years’ imprisonment or 1,200 penalty units; and
Summary Charge 9 – unlawful assault with a weapon, 2 years’ imprisonment.
3 In addition, you admitted your prior criminal history. There are three court appearances that span the period from 24 February 2015 until 10 April 2017.
4 On 24 February 2015 at Melbourne Magistrates’ Court, you were without conviction, placed on an adjourned undertaking for a period of year in respect to criminal damage, possess controlled weapon without excuse and deal property suspected proceeds of crime charges.
5 On 15 December 2016 at Melbourne Magistrates’ Court, you were sentenced in respect to a charge of robbery for which you were placed on a one year Community Correction Order with special conditions.
6 On 10 April 2017 you were convicted of recklessly cause injury, affray at common law, unlawful assault, commit indictable offence whilst on bail for which you were convicted and placed on a Community Correction Order for one year with additional conditions including 200 hours community work.
7 The current offending constitutes a contravention of that order and is an aggravating feature of your offending.
8 I shall now proceed to sentence you on the basis of the summary of the prosecution opening there being no objection taken to the summary at the plea hearing.
9 At the time of the offending you were 22 and you are now 23.
10 You did not know the victim in this matter, Michael Lozanovski. In the early hours of the 17th of August 2017, he was at home alone watching television. His mobile phone rang and when he answered it there was no response from the person who was calling. He then heard a noise at his back door and as he walked back toward the door he saw three men in his back yard walking towards the front of his dwelling. The men had their faces covered by scarves and he was unable to recognise them. You were one of those three men.
11 He then went to his front door and he heard a loud bang on the door and words coming from behind the door, “You’re fucked now”. He held the door which was unable to be opened. One of the three men then smashed the window next to the door. He retreated to the bathroom and locked the door behind him.
12 Thereafter, the three men entered the dwelling and started banging on the bathroom door with an axe. He was able to hold it from the other side (summary charge, assault with a weapon).
13 There is no evidence that you were the one who wielded the axe, however, it forms part of the joint criminal enterprise.
14 Lozanovski noticed some fuel coming from underneath the bathroom door, such that he ran and jumped out of the bathroom window and escaped into a neighbour’s yard. As he did so, he landed badly, fracturing his heel. The neighbours heard his cries for help and called 000.
15 Richard Clifton, a neighbour, heard the noises coming from outside and went out to investigate. On doing so he saw one man run past him down the road and then another three men run past him to a vehicle that was parked on the other side of the road. The four men then drove off in that vehicle.
16 A number of items were taken from the dwelling including a Play Station, two laptops and a television valued at $2,500 (theft).
17 Police attended and the crime scene was processed. Your DNA was found on one of the blood stains that was discovered on the bathroom door. The other co‑offenders have not been identified at this stage and are still at large.
18 Lozanovski’s Victim Impact Statement spells out in detail the effects of your offending. In addition to the physical injury he suffered, namely the facture of his left heel, he has had continual pain and difficulty standing for any periods of time, which has meant it is impossible for him to continue working in his role as a car spray painter and he is having difficulty finding suitable substitute employment.
19 He has also suffered emotional stress associated with the home invasion. He feels violated and is now hyper vigilant and personal safety is a real issue for him. He is very anxious whenever he hears noises and does not feel safe especially at night and finds it extremely difficult to sleep. He is very anxious and concerned about his wife's safety and they are soon to have their first child.
20 This is a serious example of the serious offence of home invasion involving as it does you entering upon the premises in company with others being armed with weapons and using the weapon, namely the axe and breaking into the home. You were all disguised.
21 The motivation for the offending was said to be that one of your group asserted Lozanovski was a drug dealer and there would be drugs and money on his premises. That in no way provides any excuse for your behaviour and it is necessary for the court to denounce your behaviour and as such the offending does warrant stern punishment. There is a need to emphasise both general and specific deterrence.
22 You were interviewed by police following your arrest on 7 February 2018 and made a “no comment” record of interview.
23 Following the laying of the charges, you have been remanded in custody.
24 It is accepted by the prosecution that an early plea of guilty was entered prior to the committal mention that was conducted on 9 April 2018 and then the matter proceeded by way of straight hand-up brief.
25 Mr Dunn, on your behalf, highlighted the mitigating features in your favour and also your personal history and background. You come from a loving and caring family and your childhood can best be described as unremarkable. Your parents had six children and you are the youngest and only boy in the family. Your older sisters are all highly educated and have professional careers.
26 Your parents separated when you were young and your mother became responsible for the day to day care of the children following the marriage break down. You had some limited access to your father on weekends but that was problematic and eventually you stopped seeing your father.
27 You completed your VCE at Wesley College in 2012 and then worked for a family friend as a concreter. Thereafter you commenced and completed a carpentry apprenticeship and you are fully qualified in that field.
28 At age 19 you left home to live independently and began living in share houses. You were working as a carpenter. Two of your four flatmates were not working and they were using drugs. You were introduced by them firstly to cannabis and thereafter ice. Your drug use became problematic so much so that your life spiralled out of control, you ceased working and you were offending.
29 Some years ago you met your current girlfriend, Jemma, whilst living in a share house. You formed a relationship with her but then you two drifted apart until you were reunited in late 2017. It was Jemma who persuaded you to move back in with your mother and she has supported you in regularising your lifestyle and dealing with the underlying offending behaviour, namely your addiction to the drug ice.
30 Since being in custody, you have been regularly visited by both your mother, your sisters and your girlfriend, Jemma.
31 You have utilised the time well in custody and completed 10 courses that canvassed problems associated with alcohol and drug use, first aid, workplace safety and other programs.
32 You have written a letter to the Court in which you accept full responsibility for your actions and you express deep shame and disappointment. You acknowledge that drugs were driving your lifestyle at that time but say that you now have insight into the link between your offending and your drug abuse conduct. You acknowledge now that you were accountable for your past actions and you want to make amends for your wrongdoing.
33 You have found it very difficult whilst being in custody, being surrounded by negative influences and you acknowledge the strong and close support provided by your mother, sisters and your girlfriend, Jemma.
34 You have plans for the future to return to work as a carpenter and to make a better contribution to society.
35 I have had regard to the bundle of character material that has been provided on your behalf from family members and also from Gavin Stephenson, from Inner East Constructions Pty Ltd, and Michael Gibson, MGH Construction Solutions.
36 Mr Stevenson is aware of your offending and is prepared to offer employment to you in the future. His company was a high end residential and commercial building company for whom you worked from mid-2014 through to November 2017. He was able to make comments about your conduct throughout your apprenticeship and he described you as being a person with a terrific work ethic who had the capacity to become a lead carpenter. Unfortunately his business was placed into liquidation in November 2017 and he could no longer continue to engage you as an employee. He admires you as a person and in the past has benefited greatly from your support particularly when his younger brother, to whom he was very close, died. He proposes to launch a new company in early 2019 and has made a proposal to employ you as junior site foreman in training. He holds you obviously in very high regard.
37 Michael Gibson, your most recent employer, provided a character reference also confirming your great work ethic. You were working with him until 8 January 2018. It was not until he made further inquiries about your whereabouts that he became aware of your situation currently and he was very surprised to learn that you committed this grave offending.
38 Your girlfriend, Jemma, is very supportive of you. She is in full time employment and has been strong in her support. She has no tolerance for drugs. She described her relationship with you over the years and noted that you have ended your friendship with your drug-related peers and states that since you moved back home you have been abstinent from drugs and she considers you are well on your road to recovery. Her family is described as being a close and strong family that holds good values and principles and her family is aware of your situation and remains supportive of you. She generally described how you have matured during the time you have spent in custody and that you are looking forward to the future with her support.
39 I have also read all the references provided from your sisters your sisters, Tahlia, Alexa, Samara and Kesiah, as well as the one from Liam Nolan. It is obvious that you come from a very close-knit family who have been deeply hurt by your conduct and the effects of substance abuse who describe how it has impacted upon you and led to you being involved in criminal offending. They know a person who is capable of better conduct, who now has insight into his offending and who is fully supported. They are keen for you to progress further and to put behind you all your bad life choices associated with the abuse of drugs.
40 Your mother, Pamela O’Brien, gave sworn evidence confirming the catastrophic consequences of your drug taking over the years and the fact that just prior to your remand that you had started to turn the corner and you were hoping to build a better future. She too has zero tolerance for drugs. It is proposed that you will return to live with her upon your eventual release.
41 I note that there are some outstanding driving offences concerning a charge of speeding and also drive whilst disqualified. Those charges are yet to be dealt with by the courts.
42
In formulating the appropriate sentence I have had regard to all the matters
Mr Dunn put in mitigation. I accept there is real utility in your plea. It was entered at an early stage in the proceedings and it has meant that you have spared all the witnesses having been called at committal and trial and that is important in a case as this when one of the victims, particularly Lozanovski, has been particularly traumatised by your actions. You have spared him any further trauma. Your plea reflects a willingness to facilitate the course of justice and also an acceptance of responsibility and I am satisfied that you are genuinely remorseful.
43 The post-offence conduct whilst on remand and also the conduct that has been described by the witnesses in the lead up to your arrest is reflective of a person who has developing insight. You have indicated a willingness to pursue treatment in respect drug addiction and alcohol addiction and you want to regularise your life by taking up employment opportunities and remaining abstinent from all drugs. You do, fortunately, have very strong family support, a stable home environment to return to, a trade that you can pursue and you are also exhibiting more mature and responsible behaviour.
44 As was stated in the guideline judgment of Boulton v R (“Boulton”),[1] sentencing courts do now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in a coherent and balance way, in preference to the option of imprisonment which is skewed towards retribution and deterrence.[2]
[1][2014] VSCA 342
[2](ibid) [113]
45 A Community Correction Order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[3]
[3](ibid) [4], [85-102], [123-130], [131]
46 In this case, I am satisfied that a combination of gaol to be served to be followed by a three-year Community Correction Order in the terms that I have already described is punitive, can act as a deterrence for you and also can mark the court's disapproval of your actions. The Community Correction Order is tailored to your particular circumstances and the causes that led to this offending and is directed at your ultimate rehabilitation. That will be best, not only for you, but also would offer the best for community protection in the future. It is important that the courts do look to the future as well as to the past.
47 I have had regard to a court’s power to impose a Community Correction Order in addition to a sentence of imprisonment. I note that it is circumscribed by s44(1) of the Sentencing Act 1991. I have had regard to the decision of Younger v R[4]. The court's power to impose a CCO in addition to a sentence of imprisonment is circumscribed to be a year or less pursuant to s44(1) of the Sentencing Act 1991. But as they said in Younger:
“Boulton stands for the proposition that pre-sentence detention declared under s 18 of the Act does not count for the purposes of the length of imprisonment capable of being combined with a CCO. Boulton approved the approach taken in Hancock v R, in which the [Court of Appeal] resentenced an offender to a term of imprisonment of 249 days’ imprisonment (equivalent to time served) in combination with a CCO, even though s 44 at that time only permitted a maximum term of three months’ imprisonment to be combined with a CCO. Thus an effective term of imprisonment longer than the maximum period allowed under s 44 could be imposed if the effect of any declared pre-sentence detention was that the term of imprisonment that remained to be served at the time of sentencing was less than the maximum period of imprisonment which s 44 permitted.”
[4][2016] VSCA 1321
48 You have completed 217 days pre‑sentence detention.
49 It is my intention to impose an aggregate term of imprisonment in respect to each of the charges on the indictment together with the Summary Charge 9 as all charges relate to the same series of offences of 12 months imprisonment to be followed by a CCO of 3 years duration with supervision, and drug and alcohol assessment and treatment conditions which in effect means that you will serve a further 12 months’ imprisonment from today's date to be followed by the Community Correction Order that I have outlined.
50 The order that I make is that an aggregate term of imprisonment of 582 days will be made.
51 In respect to each of the charges, you will be convicted and sentenced to 582 days to be followed by a Community Corrections Order of three years duration with the conditions I have already described.
52 I note that I have advised you about what the consequences are of any contravention of such an order are to be and that you have consented to the order being made.
53 Finally, I make the declaration pursuant to s6AAA, but for your plea of guilty I would have imposed a term of imprisonment of 5 years to serve 3 years.
54 I think that covers everything. Were there any ancillary orders sought by the Crown?
MS TULLOCH: No, thank you, Your Honour. I don't think there were.
HER HONOUR: No, there doesn't appear to be anything in the information. That completes that matter.
MS COATH: Just one matter, Your Honour.
HER HONOUR: Yes.
MS COATH: Has Your Honour formally declared the pre-sentence detention?
HER HONOUR: Yes, I do need to declare the 217 days - - -
MS COATH: Thank you, Your Honour.
HER HONOUR: - - - as pre-sentence detention already served under this order and I direct that that be entered into the record of the courts. Thank you for that, Ms Coath.
MS COATH: You have to thank my instructor.
HER HONOUR: We would have picked it up. It's on the order is it? Yes. Yes. I think that my intention is very clear and we'll make sure that the records people at Corrections understand that.
MS COATH: As Your Honour pleases.
MS TULLOCH: As Your Honour pleases. Thank you.
HER HONOUR: Yes. All that remains is Ms Coath, for you to ask
Mr Madden just to sign the order.
MS COATH: Yes, Your Honour.
HER HONOUR: The Community Correction Order.
MS COATH: Might my instructor be permitted to attend - - -
HER HONOUR: Yes, yes, certainly.
MS COATH: - - - to that? Thank you.
HER HONOUR: That's been signed? Good. All right, I'll just adjourn and you can provide a copy. Thank you.
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