Director of Public Prosecutions v Martin
[2021] VCC 917
•7 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 18-01107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON MARTIN |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Shepparton |
DATE OF HEARING: | |
DATE OF SENTENCE: | 7 July 2021 |
CASE MAY BE CITED AS: | DPP v MARTIN |
MEDIUM NEUTRAL CITATION: | [2021] VCC 917 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr T. Campbell | Victorian Aboriginal Legal Service |
HIS HONOUR:
1Shannon Martin, you have pleaded guilty to one charge of aggravated burglary. That crime carries a maximum penalty of 25 years' imprisonment. You are now 29 years of age and were 25 years of age at the time of the offending. Your plea of guilty, I have no doubt, is accompanied by appropriate remorse and is to a settled indictment. You clearly must get the utilitarian benefit of that plea of guilty. It saved the need for a trial and, whilst the trial would have been interesting, it certainly, in these days of COVID in particular, bearing in mind the decisions of Worboyes, is a benefit to the court and a benefit to the system as such, and accordingly you do get a significant discount for that. Importantly, at your relatively young age you have no prior convictions and that obviously is important.
2In terms of a summary of the offending that occurred, I will simply go through that. A Joshua McLean, a Daniel Knight and a Brandon May, together with you, went to premises in Jonagold Court in Shepparton. You were all in your mid-twenties and pretty much all knew each other and knew the people who were in the house to which you went.
3A Madeline Antonowicz was 24 years of age at the time and she was in the house, along with a Mr McGarry. The situation had been that Mr McLean, a co-accused, and her had been in a relationship for years and were engaged to be married and that relationship had ended in around about 2017. Mr McLean and Mr McGarry had gone to school together and their friendship had ceased about a year and a half prior to the offending as the two of them had grown apart.
Mr McLean said that Mr McGarry had been his best friend.4About two to three weeks prior to the offending a number of people, including Mr McLean and Mr Knight, had gone to that address to confront Mr McGarry and Ms Antonowicz about whether they were in a relationship, and in fact my recollection is that they were lied to at that time. A Ms Millen who was there had also been in a relationship with Mr McGarry and she was due to be married to him in November of 2017, a couple of months later. At that point the two denied there was anything going on. Shortly after that, Mr McLean found out. Mr McLean, Mr McGarry and you, Mr Martin, had been very close friends. As I understand it, in fact you were going to be the best man at that wedding but that might be an error on my part.
5In any event, on Saturday night of 9 September 2017 you and three other accused attended a party. A Mr Shannon was also in attendance at the party. Alcohol was drunk, the conversation got towards the nature of the relationship and the position of Mr McGarry and basically what he had done. There seemed to be a general revved-up alcoholic concern about his conduct and that perhaps something should be done about it.
6In any event, after a lot of toing and froing as would occur in such a situation
Mr Shannon, according to him, drove the four of you in the ultimate to the house at Jonagold Court where Mr McGarry and Ms Antonowicz were apparently watching television and eating pizza.7You four got out of the car, there was loud banging on the front door. Someone said, 'You've had this coming, you dog'. Mr McGarry got out of bed and opened the bedroom door. Antonowicz also got out of bed and walked to the front door to see what was going on and through the window they saw Mr McLean and
Mr Knight. Mr May broke the window and McGarry backed down the hallway. The door was then kicked open and Mr Knight, Mr McLean and Mr May entered the house and chased Mr McGarry down the passage.8The Crown opening says that McLean was carrying a pole and May was carrying a Jim Beam bottle. I am not going to sentence on that basis because I have a reasonable doubt certainly about the pole and I am not prepared to sentence on the basis that the Jim Beam bottle that would appear to have been taken there by Mr May was taken with the intention of it being a weapon. In any event, the indictment does not include a weapon so I will not either.
9The situation is that I sentence on the basis that you did not enter the house; in fact, you stayed outside. Ms Antonowicz was pushed out of the way and there was a situation then when a window was smashed and Mr McGarry was assaulted. He was effectively put through a window and punched several times to the face. That punching seems to have been done by Mr McLean and
Mr Knight and someone apparently hit him with a Jim Beam bottle. I am not prepared to sentence any of you on the basis that any of you did that or knew that it was going to happen.10The four of you then left the house and returned to the car. You were in the car with them. Mr McLean was then picked up early from the party where you had all gone to and when talking to his uncle in the car on the way home he said, 'I fucked up, Uncle Rob'. That is a pretty fair description of what happened to all four of you, in my view.
11In any event, McGarry was taken to hospital and had a number of injuries, which gave rise to the charge of injury which the other three face but you do not, but obviously it is a factor which plays some part in this sentencing process. The others were interviewed and arrested and gave varying records of interview which contained varying amounts of truth. There was a man called Jackson who was at one stage apparently blamed for all this. I do not need to go into that, but there was something a bit strange in the background. What conversations took place before they were interviewed, I have no idea.
12In any event, you were interviewed, Mr Martin, and you described how it had all come about; that you had gone there pretty much thinking that something along these lines may well happen or would probably happen, which gives rise to the complicity, and indeed it did. You went, and I can understand, out of loyalty to your friend Mr McLean because you were concerned about how far it all might go, but in any event I accept that it was a spur of the moment decision by the other three to enter the house and they did so very quickly and you would have had little time to consider anything. I accept, as I have said, for these sentencing purposes you did not go into the house at all.
13Afterwards, all four went back to the party. Again, an interview took place with you later on as I have indicated and your record of interview followed a similar pattern, though I do accept that it displays remorse. The offending has to be regarded as serious, it is an aggravated burglary on a home, and despite all the circumstances and the milieu in which it took place, I must impose a sentence that does reflect that it is not simply a trivial matter. The CCO that I will be imposing - there is no suggestion from the Crown that any disposition other than that would be appropriate - will be with conviction, which is a punishment in itself.
14Obviously, like-minded people if possible should be deterred. I do not think there is much specific deterrence needed for you for reasons I will outline in a moment. There must be an element of denunciation and, as I have just indicated, I think appropriate punishment.
15Insofar as parity is concerned, each of your co-accused pleaded guilty to charges of home invasion and causing injury. Each of them received a four-year community corrections order with 400 hours of community work. Insofar as parity is concerned, you are all of a similar age, nobody had any priors as I recall, though there might have been a good behaviour bond involved in one of them. Your role in all this was in my view far less. I just think that you went naively on the basis that you might try to break things up but in the end you did not. You face one lesser charge than they did and, as I have indicated, your role was far less. You did not go in. In those circumstances, parity has to play a part and you will therefore receive significantly less work hours than they would, but there must be work hours involved.
16I will get to matters personal to you in a moment, but in terms of disposition I think the CCO is very much available in these circumstances. I do not have to refer to any detail, the cases of Boulton, Bradshaw, matters such as that. Obviously aggravated burglary is a crime which can cover a whole range of areas and I regard this one as being at the lower end, particularly in an objective sense, and also the matters personal to you are of great significance as well.
17Your counsel this morning in very helpful short compass has pointed out that your life now revolves around work and your family. You have been in a relationship now for a considerable period of time, you have two children I think around about 10 and four years of age. Your wife works fulltime, you work fulltime at the abattoirs and I have a very favourable reference from your employer. You look after the kids on weekends when your wife is working and I accept that that would impose some difficulties in terms of work hours on a community corrections order but I am going to make that corrections order over three years, which gives you the opportunity to complete those hours. If something did go wrong with that, because of work or ill-health or something like that, the matter can always be returned to me to have it extended or hours, if appropriate circumstances exist, reduced.
18Your history is that you were born in Portland. You do have a good work history. You went to Numurkah High School and ultimately Wangaratta. You started a TAFE course in engineering, you started an apprenticeship in engineering and continued to do that for a while. You have basically worked as I understand it since you left school. You started at the meat works in 2012 and you have worked there ever since. Indeed, as I understand it and I may have already mentioned this, that is where you met your co-accused which explains why there might have been a degree of misplaced loyalty in all this.
19In any event, you have no priors, you have never been in trouble before. I do accept totally that in your situation this is a one-off. There has now been a delay of some four years. You have not offended in that time and it gives me great confidence that you will not offend again in the future. Once you have got these work hours done the matter can be put behind you and you can just, as I am sure you will, lead a useful life within the community and raise your family and be a hardworking young and then older man.
20As far as rehabilitation is concerned, I am satisfied that has already been achieved. The risk of your reoffending is very low indeed. We do not have the drug problem, we do not have the alcohol problem that often is associated with such offending, and I am very confident that there will not be any.
21Accordingly, in all those circumstances I am going to place you on a community corrections order. As I have indicated, it will be with conviction, which is a punishment in itself. It will be over a period of three years, which indicates that it is serious. The only condition I will be imposing on it will be that you perform 150 work hours and that will be done at the discretion obviously of Corrections. I will just get that done now. Would you get your client to sign that for me,
Mr Campbell.22MR CAMPBELL: Yes, Your Honour.
23HIS HONOUR: It is a community corrections order. If you breach it by anything like this, there is going to have to be a different result. Sometimes when you are working and have got kids and things like that and you have difficulties with the work hours, do not fall out with Corrections otherwise they start sooking and bring it back and I have to deal with it again and everything else. If something does go wrong, just bring it back and we can always extend it or whatever, all right? It is 150 hours. Once you have got the 150 hours done the CCO ceases, so the sooner you can get it done the sooner the whole thing is all over.
24OFFENDER: Yes, Your Honour.
25HIS HONOUR: All right, thank you for that. I refused to do a 6AAA for the others; is that right?
26MR CAMPBELL: You did, Your Honour.
27HIS HONOUR: Yes, I refuse again. It is meaningless in these situations.
---
0
0
0