Director of Public Prosecutions v Markham

[2018] VCC 1915

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01240
CR-18-01483

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP MARKHAM
DANIEL CHARTERIS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2018
DATE OF SENTENCE:	20 November 2018
CASE MAY BE CITED AS:	DPP v Markham
MEDIUM NEUTRAL CITATION:	[2018] VCC 1915

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Each offender pleaded guilty to aggravated burglary – Charteris also pleaded guilty to criminal damage – offenders were called to assist Charteris’s sister who had been assaulted by boyfriend – Charteris broke door down – both left after entering house briefly – limited criminal histories – good work history – good prospects for rehabilitation – CCO appropriate.

Sentence:CCO 12 months – 80 hours

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Upton	OPP
For Accused Markham	Mr D. De Francesco	C.Marshall & Associates
For Accused Charteris	Mr J. Mitchell	Emma Turnbull Lawyers

HER HONOUR: 

1Phillip Markham and Daniel Charteris have each pleaded guilty to one charge of aggravated burglary on separate indictments.  Daniel Charteris has also pleaded guilty to one charge of damaging property.

2On Saturday 28 October 2017 both accused went to the Sunbury home of Bree Charteris, the sister of Daniel Charteris.  Bree Charteris had been in a relationship with Leigh Castellas for the previous 12 months.  The accused had both been told that Bree Charteris had been assaulted by Castellas in the early hours of Saturday morning, when he had returned home intoxicated.  It was alleged that he had punched Bree Charteris and damaged property before leaving a short time later.

3Both accused went there intending to stay the night, as Bree Charteris was concerned that Leigh Castellas would return.  Leigh Castellas is the brother of Sarah Castellas, who lives at 14 La Perouse Close in Sunbury with Shannon Redet and Veronica Whittingham.  At about 10 pm on Saturday night, Shannon Redet answered a phone call on Sarah Castellas' mobile phone.  It was a call made through Facebook Messenger from the account of Bree Charteris.  It is thought that Daniel Charteris made the call.

4The male caller said, "I am the older brother.  I want him here.  I want him here or I'm gonna come around and kick your door in".  The caller kept repeating that he wanted him.  Redet believed that the caller was referring to Leigh Castellas and he replied several times that Leigh Castellas was not at the house.  The caller said he would come around and kick Redet's head in.  Redet hung up the phone.

5At 10.45 pm both accused and Bree Charteris arrived at 14 La Perouse Close.  Both men banged on the front door and twice demanded that Leigh Castellas come out to face them.  The two of them then kicked the front door open.  The door hit Redet in the face, knocking his glasses off.  Both accused entered the house, going inside approximately one to two metres.  They were yelling, "Where is he?  Where is he?".  They were told several times that Leigh Castellas was not at the house and they both left.

6By this time the police had already been called to attend and at about 11 pm the police intercepted the car in which both accused and Bree Charteris were travelling.  Senior Constable Furman spoke to Ms Charteris and observed that she was upset and had swelling beneath her left eye.  She told Senior Constable Furman that she had been punched there, by Leigh Castellas and that he had caused damage in the house that night and made threats to her safety.  Both accused were arrested and taken to the police station where they interviewed. 

7After initially declining to answer questions, Markham said in the interview that both men went to the house that night to have a talk with Leigh Castellas, and then when told he was not there they entered the house by about two feet.  There were some quick words and then they left.  The police had told Markham that he was being interviewed about aggravated burglary and when asked at the end of the interview if he wanted to add anything, he said, aggravated burglary is a nasty sort of thing, but having done it, there was nothing he could do to change it.  This led the informant to note in his summary of the incident, that Markham was cooperative, remorseful and apologetic. 

8After a contested committal hearing was listed and witnesses came to court to be cross-examined on the limited issue of intent, the matter resolved without the need for any cross-examination and he entered a plea of guilty.

9Charteris made a no comment record of interview and was released on bail.  Each accused is entitled to a discount on his sentence for that plea and the remorseful attitude that accompanies it because it has spared the witnesses having to give evidence and avoided the expense and inconvenience of a trial. 

10Aggravated burglary is indeed a serious offence with a maximum penalty of 25 years' imprisonment.  Generally it deserves a prison sentence, but in the case of each accused the circumstances do not require that.  There were no consequences to them breaking into and entering the house, other than the fact that the door hit Mr Redet as it was kicked open.  There was no assault and they left quickly. 

Personal background and circumstances of Phillip Markham

11I turn now to the background and personal circumstances of Mr Markham.   Your presence there that night and the action you took was entirely misguided and represents poor judgement in a man who should know better.  It is at odds with the description of you, given by John Goggin, who wrote a letter about your contribution as a dependable and reliable employee, having worked in the construction industry for some years, including several years as an Occupational Health and Safety Officer.

12As to your background, you are aged 34 and you are single at the moment, but you have a partner who is pregnant and due to give birth in January.  She has five children from a previous relationship and presently you are not living together, but she was in court to support you.  You grew up without a father, whom you never knew, and tragically your mother was murdered when you were three years' old.  You were brought up by your grandmother but you and she fell out when you were 15 and you left home, living independently after that.

13You left school and completed an apprenticeship as a fitter and turner, supplementing your apprentice wages by working at two additional jobs as a boilermaker and a farm hand.  At the age of 19, you began working in the construction industry.  In 2007 you qualified, as I said, as an Occupational Health and Safety representative.  At a relatively young age you have demonstrated your capacity for hard work and for enhancing your qualifications. 

14Unfortunately you have been unemployed for almost a year and you spent some months after this incident occurred, where you were not even looking for work.  It appears that being charged with this offence and the difficulties connected with your previous relationship, had begun to affect your capacity to work.  About a year before this incident, in August 2016 you were fined without conviction, for intentionally causing injury, the victim being your partner at the time.  She is the mother of your two daughters, now aged five and three.

15You and your partner separated in November 2015 and the assault resulted in an intervention order against you by your partner, which you breached by sending text messages to her, for which you have been fined.  The Department of Health and Human Services became involved because of concerns about your violence and the possible abuse of alcohol, but after their investigation they closed the file.  The separation from your partner was acrimonious and you have not been able to see the children since February this year.  I am told that you are yet to take any steps to rectify that.

16Although aggravated burglary is a serious charge with a substantial maximum penalty, your involvement was at the lower end of the range of seriousness and that is conceded by the prosecution.  You told the police that you went to the house to talk to Mr Castellas with no other plan, but clearly you were angry or Mr Charteris was angry and you went along with it, without giving consideration to the risk of something other than conversation occurring.  Fortunately things did not get out of hand, as they could have.

17General deterrence is an important sentencing principle in this case and that must be reflected in the sentence in order to try to deter others from offending in the same way.  You and Mr Charteris took matters into your own hands and that cannot be tolerated.  From what you told the Corrections officer who assessed you recently, you appear to well understand that now, even if you did not at the time.  The need for specific deterrence is somewhat reduced in your particular circumstances and that is why I decided to have you assessed.

18After the assessment and the night before you were due to return to court to be sentenced, you were picked up by the police and charged with criminal damage, assault and trespass and committing an indictable offence whilst on bail.  The police summary of those offences makes for quite bizarre reading and I am not aware of the context of that offending.  In any event, you appeared in the Sunshine Magistrates' Court on 8 November and were sentenced to a month’s imprisonment, of which you had already served 21 days, and I understand that you were to be released on 18 November. 

19You have been assessed as suitable for a Community Correction Order for the matters before me and it will begin today and it will last for 12 months.  A conviction will be recorded.  You will be under supervision and you will be required to perform 80 hours of unpaid community work over six months.  You will be assessed to see if there is a need for treatment for alcohol abuse.  You will also be assessed as to any need for psychological counselling, in view of possibly unresolved issues from your childhood.  Any hours spent in treatment under your obligations will be credited to the hours of unpaid community work.  You must attend the Corrections Office, which is at 83-85 Unitt Street, Melton by 4 pm on 22 November, that is in two days' time.

20You must understand that if you offend again while on this order, you will have breached it and you will have to return to court to be re-sentenced. 

21The subsequent offending that I have just referred to, suggests that you do need careful monitoring and for that reason I will order that you be subject to judicial monitoring.  That means you must come here to court from time to time, so I can hear about your progress.  I shall have a report from your case manager and you will have a chance to talk about it with me.  There will be no need for any lawyers to attend, just you and the case manager, although you are free to bring along a friend or a family member, if you wish to.  The first judicial monitoring will be at 10am on 11 February 2019.

22The prosecution seeks an order for a forensic sample of saliva to be obtained and I make that order.  I understand that is not opposed by you.  Is that right, Mr De Francesco?

23MR De FRANCESCO:  That is correct, Your Honour.

24HER HONOUR:  Yes, thank you.  I must advise you that the police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.  Take a seat please, Mr Markham, while I return to Mr Charteris' background and personal circumstances. 

25Mr Charteris, you can remain seated for the moment.  The progress of your case was a little different from that of Mr Markham.  You had been unrepresented initially, believing that you were not eligible for legal aid because you were working and that you were unable to afford the legal fees you were quoted by a solicitor.  You were advised to plead not guilty, apparently, with legal costs estimated to be $30,000.  At a committal mention in July, still unrepresented, you had the process explained to you by a lawyer from the Office of Public Prosecutions and you decided to plead guilty.

26The case was adjourned for a funding hearing and you failed to appear and I believe that that was intentional, because you believed that the only way you would be eligible for legal aid, was if you were remanded in custody.  You then went to a police station and asked to be remanded and you were indeed remanded in custody, and you have now spent by my calculation, 43 days in
pre-sentence detention, and this is your first time in custody.

27In addressing your involvement in the offending, your counsel explained that your mother and brother had asked you to go to the house after they had been there to help your sister deal with the situation, but neither of them could stay and Bree was worried that Castellas would return.  You went there intending to confront Castellas if he was there, or if he returned.  That decision led to an ill-advised and aggressive confrontation with the innocent occupants of the house. 

28As I said before, you remained in the house for a very short time, just inside the doorway and no one was hurt, no weapon was used and the damage to the door was minimal.  It can be determined from those facts that the offence of aggravated burglary in this particular case was of a low order and it follows that in combination with your personal circumstances and prospects for rehabilitation, your punishment can be somewhat lenient.

29You are one of three children from a law-abiding family.  Neither your mother, nor your brother or sister have ever been involved with the police.  Indeed your mother worked as a conveyancer for years, until a few years ago, when she became the carer for her husband who was terminally ill.  Your own father died when you were 14.  You left school early to get a job, despite your family trying to persuade you to stay at school and you have worked full time in various labour hire positions since you were 17.

30Your criminal history is very limited, confined to three court appearances some years ago, for excessively rowdy and can I say, stupid behaviour.  Getting drunk, smashing a window and finally in 2013, charges of criminal damage and assault when you jumped on the roof of your girlfriend's car and committed an assault.  For those offences you were placed on a Community Correction Order for nine months. 

31Apparently you have reduced alcohol consumption so that you now only drink occasionally and you no longer use cannabis, as you did earlier.  You have no mental health issues.  You are now aged 35 and perhaps you have reached that stage of maturity which is fortunately often seen in men who are finally able to put the excesses of their youthful past behind them.  You will be living with your mother when you are released.  Your two former employers and landlord have provided references, which confirm your good work ethic and your honesty and reliability, indicating that these qualities will enhance your prospects for future employment, indeed for your rehabilitation generally.

32You have also been assessed as suitable for a Community Correction Order and that disposition is warranted, in the circumstances of this case. 

33Would you stand now please, Mr Charteris?  It will begin today and will last for 12 months.  A conviction will be recorded.  You will be required to be under supervision and to perform 80 hours of community work over six months.  You will also have to take part in programs to reduce reoffending.  Any time you spend on this program can be credited against the hours of community work and will help you to complete those obligations.

34I am told, I believe that you have successfully completed Community Correction Orders in the past and so you know how they work and what you have to do.  You must report to the Corrections Office in Bendigo at 3 William Vahland Street by 4 pm on 22 November. 

35And again, as with Mr Markham, the prosecution has applied for an order for a forensic sample of saliva to be obtained.  You do not oppose that and I make that order, and must advise you that the police have the power to use reasonable force to obtain the sample, but once again I trust that will not be necessary.

36ACCUSED CHARTERIS:  No (indistinct).

37HER HONOUR:  Now the Correction Orders are ready to be signed and if counsel would like to accompany my associate to the dock, that can be done.

38(Community Correction Orders signed and acknowledged.)

39HER HONOUR:  Thank you.  Any other matters?

40MR De FRANCESCO:  No, Your Honour.

41MS UPTON:  No, Your Honour.

42MR MITCHELL:  No, Your Honour.

43HER HONOUR:  Thank you.

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