Director of Public Prosecutions v Mathews

[2017] VCC 56

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01527

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MATHEWS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Geelong
DATE OF HEARING:	15 February 2017
DATE OF SENTENCE:	16 February 2017
CASE MAY BE CITED AS:	DPP v Mathews
MEDIUM NEUTRAL CITATION:	[2017] VCC 56

REASONS FOR SENTENCE

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Subject: Criminal law-  sentence            

Catchwords:   Pleas of guilty to one charge of burglary and one charge of common law assault – offender aged 33, 32 at the time entered house uninvited and assaulted an occupant – prior history including convictions for violent offending – breached previous CCO both here and in NZ – scant regard for authority – general and specific deterrence relevant – reasonable prospects for rehabilitation – moderate risk of re-offending.                   

Sentence:      6 months’ imprisonment and 2 year CCO.

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APPEARANCES	Counsel	Solicitors
For the DPP	Ms A Moran	OPP
For the Accused	Mr D Gray	Brugman Barristers and Solicitors

HER HONOUR:

1Michael Mathews, you have pleaded guilty to one charge of burglary and one charge of common law assault.  The maximum penalty for burglary is ten years' imprisonment and for assault, five years.

2I will be sentencing you to a term of imprisonment of six months together with a Community Correction Order and I will now explain my reasons for doing so.

3The circumstances of the offending are that on the evening of 12 March 2016 you went with five other people to a house in Corio.  It was the home of Jennifer Blackney who lived there with her two sons. 

4Present in the house with her that evening were her ex-partner, Shane McLaren and her friends, Corey Dupe and Peter Gibbons.

5One of your group was the co-accused, George Humphries and it also included your current partner, Bonnie Coghill[1] and her mother, Lisa Murray. 

[1] Described as  Bonnie Murray in the Pros Opening

6The reason for the visit was that Ms Murray's 12 year old son, Jesse, who had been missing for two days, was reportedly at the house.  You decided to go to the house with the group to collect him.

7The boy, Jesse, had been involved in a prank with his friends, the two Blackney boys, played on Peter Gibbons who had reportedly been angry because of it and had frightened Jesse with threats.  However, you had not known that Gibbons was at the Corio house that evening.

8Despite that lack of knowledge you had gone to the house and had entered it uninvited intending to cause the occupants to fear that you would physically assault them, which itself, amounts to assault.  The prosecution case is put on this basis and that you did not intend to apply force to the occupants. 

9You saw Gibbons there and you said, "Look, it's poofter Pete and you're the guy who belted my little bro", a reference to Jesse, being the young brother of your partner, Bonnie Coghill.  You then commenced forcefully slapping Gibbons to the face and head.  Whilst doing so you said, "This is making me happy” and “You and your brother gonna punch me and my brother, hey, bro?” and “What did you do to me little brother?"  This was the reference to the prank played by Jesse and the victim's reaction to it.

10After the assault on Gibbons, Humphries approached Dupe who was sitting on a couch, and punched him to the heard numerous times.  Humphries then pointed an orange coloured box cutter at Dupe and said, "I ought to cut you".  He slashed at Dupe and cut the peak of Dupe's cap.  Humphries then stated, "I'm going to slice you if you don't hand over your keys". 

11Dupe owned a Ford Festiva vehicle and Humphries said, "If you report this to the police I'll hunt you down and shoot you".  As a result Dupe handed over his keys.  Humphries then forced Dupe to write a receipt for the sale of the vehicle.  He was not happy with it so he forced Dupe to write another while still armed with the box cutter.

12You played no part in these actions of Humphries and you left the house with the others soon afterwards.

13However, Humphries returned inside moments later and punched Dupe in the mouth saying he had not handed over the keys.  They were located on the ground and Humphries then left in Dupe's vehicle.

14Police attended the house and noted the injuries to Gibbons as being swelling and a bleeding lip.  He refused medical attention then but sought treatment two days later when he was observed to have swelling near his lower left jaw, some old blood in his left ear canal and redness in his right eardrum. 

15The vehicle was located at your home the day after the offending.  Humphries was present as were the others who had been at the Corio house, and arrests were made. 

16When interviewed by police you told them that you had suggested going to the Corio house when you heard Jesse had been found and was there.  You knew that Jesse had been frightened of Gibbons because he had threatened to bash Jesse.  You had also been told that Gibbons was giving synthetic marijuana to Jesse and his friends.

17You told the police that you were a father figure for Jesse and his family, and also that you had had a few drinks that evening before going to the house.

18You said you had slapped Gibbons in the context of asking him why Jesse was so terrified of him and that you had slapped him at least four times. 

19Turning now to your personal background.  You are aged 33 and you were born in New Zealand, having come here five years ago.  Your parents still live in New Zealand but you have two sisters living here. 

20Your secondary schooling ended at Year 10 and you had spent that last year at a home for boys because of drag racing.  This meant that you had to live and study there but could go home on weekends. 

21On finishing school you started a building apprenticeship, which you did not complete due to lack of funds.  However, you had obtained some skills and were able to put them to use being employed as a carpenter, until coming to Australia where you have worked for the Roofing Doctor based in Geelong.  When work is not available there you take on other work, as you are now at a chicken factory.

22You have a nine year old child born of a relationship in New Zealand and that child now lives in Australia with his mother.

23You have been in a relationship with Bonnie Coghill for just under a year and together you have a newborn baby.  Ms Coghill gave evidence that she has never seen you use hard drugs or resort to violence and that you are a good partner to her and a good family man.

24You have an extensive criminal history in New Zealand beginning in 2003 when you were 19, with driving offences of a serious type, continuing until you left to come to Australia. In 2007 at the age of 23 you breached a New Zealand  community based sentence that you were undergoing  for driving offences and you committed shoplifting and a trespass offence.

25Later that year you were convicted of assault on a female, your then partner, and sentenced to six months imprisonment.  Two years later you were convicted of contravening a protection order, assaulting a person with a stabbing or cutting instrument and escaping from custody and you were again sentenced to six months' imprisonment. 

26Further convictions followed for a range offences including shoplifting until 2012 when you came to Australia.

27Here, your offending until now has been limited to driving charges and theft associated with some registration plates that you did not know were stolen, but that offending indicates a continuing disregard for the law and for authority. 

28As I have said you have breached one Community Correction Order and only just avoided being in breach of another through this offending. 

29That being said, and until you committed the offences for which I am sentencing you today, your offending since you came to Australia has been less serious and there have been no violent offences.

30Your prospects for rehabilitation are, perhaps, reasonable because you have no problems with illicit drug use apart from the use of marijuana, and although you had been drinking on the night of these offences, there does not seem to be any evidence of alcohol use being at problem levels.

31Added to that you appear to have a good work record and you are in a stable relationship with commitment to your new family.  You now have family responsibilities at an age when men often enter a new stage of maturity and their offending behaviour diminishes.  It is too soon to say whether that is a path that you will be following but perhaps the barriers preventing that have been reduced. 

32Your plea of guilty was of course a late plea, but nonetheless it has avoided a trial and spared a number of witnesses from having to give evidence and be cross-examined. 

33It is to be accepted as an indication of remorse, which you have expressed to Dr Zimmerman, the psychiatrist who assessed you recently.  You told her that there is no excuse for violence and you regret what happened. 

34Doctor Zimmerman reported that you told her you were overjoyed at the birth of your baby girl and that you very much fear going to prison and being sent back to New Zealand.  I should add that Dr Zimmerman found that you do not suffer from any form of mental illness or disorder. 

35Your plea means you are entitled to a discount on your sentence, even though it was late, given that the negotiations resulted in a different charge being placed on the indictment.

36General deterrence is significantly important in cases like this where a person's home is entered by uninvited people and the occupants of the house are threatened, frightened and indeed harmed.  At the time of your entry you intended to threaten and frighten, and in that respect in terms of your intention it was confrontational, but once inside the house your behaviour escalated to actual violence. 

37The penalty I impose must reflect how serious that is and must act as a deterrent to others.

38Mr Gray submitted on your behalf that I should take into account the likelihood that most offenders convicted of burglary committed that offence in the context of gaining entry to a premises to steal and that the circumstances of your entry to the house were different and less serious. 

39Nonetheless, although you went there to collect the boy and for nothing more nefarious, you also went with a grievance in mind in relation to Gibbons, it being irrelevant that you did not know he was there. 

40However, I take into account the difference that Mr Gray has submitted exists and it is reflected in the penalty I will be imposing. 

41In your case, specific deterrence is also necessary, given your record of scant respect for authority and the two New Zealand convictions for violent offending.  Those negative aspects must be weighed against the positive indications suggested by the stability in your life, a good work ethic and the absence of concerning problems with drugs.

42Some support for those positive aspects is provided by your sister, Lisa Mathews, in a reference she has written for you confirming your work history and current employment and your attributes as a family man. 

43Parity is a consideration which has little or no relevance in this case because the co-accused, Humphries, was charged with armed robbery and had a more extensive criminal history.  He was sentenced to three years and three months' imprisonment with a two year non-parole period.  His offending in the circumstances are sufficiently different from yours to warrant no regard being given to the need for parity.

44The others who were arrested were charged with less serious offences and were dealt with in the Magistrates' Court where they received various sentences commensurate with that offending.

45A Victim Impact Statement was provided by Ms Blackney, the occupier of the house where the offending took place.  She described her fear of something similar happening again and her hypervigilance to the presence of people in the vicinity of her house.  She re-lives the crime in her mind and has trouble sleeping because of it.  She said she does not feel like the same person.  She was entirely innocent in this ordeal and had every right to feel safe in her own home. In going to the house that night you may not have intended to frighten Ms Blackney, but you certainly did, and it adds to the seriousness of the offending.

46I understand, as I said before, that you are very fearful that you will be deported to New Zealand and separated from your partner and baby.  That is an administrative decision and the likelihood of it, or otherwise, is not a matter I may take into account, but I can take into account by way of mitigation the uncertainty you will have to endure for some period of time, not knowing whether you will in fact be deported.

47You have been assessed as suitable for a Community Correction Order and the writer of a report has assessed your risk of re-offending as being moderate.  Therefore, a number of conditions have been recommended and they will form part of the order I am going to make and I will return to that shortly.

48Would you stand now, please, Mr Mathews.

49For Charge 1, I sentence you to six months' imprisonment.

50For Charge 2, I impose the Community Correction Order which will commence when you are released and will last for two years. 

51You will be under supervision and must perform 100 hours of unpaid community work over six months. 

52You must be assessed and have any necessary treatment regarding the use of alcohol.  You will also be assessed as to your suitability for programs which might reduce the risk of re-offending.

53Finally, you must come to court from time to time so I can hear about your progress.  That is known as judicial monitoring.  Your first attendance will be on 30 October at 9.30 am.  You must come here to Geelong Court and there will be a video-link to my court in Melbourne and by then I will have a report about your progress and I will discuss it with you.  No lawyers will be there, only one of the Corrections officers on the video link as well.

54Once you are released, you must report to the Corrections Office in Geelong within two working days of your release from prison.

55You will understand that the Community Correction Order this time is different from those imposed upon you in the past.  You will be under much more scrutiny and there will be greater obligations on your part.  It is most important that you comply with those, because if you do not, you will be breached and a further prison term would be a real possibility.

56If you had pleaded not guilty to these charges I would have sentenced you to nine months' imprisonment and a longer Community Correction Order. 

57I declare that you have spent three days in pre-sentence detention and that should be noted on the court record.

58The prosecution seeks an order for a forensic sample of saliva to be obtained, and that is not opposed, so I make that order.  I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary. 

59In a moment you will be asked to sign the Community Correction Order, Mr Mathews, and I will sign it and I will just make sure there are no other matters that I have neglected or omitted. 

60Anything further, Ms Moran?

61MS MORAN:  No, Your Honour, thank you. 

62HER HONOUR:  Mr Gray?

63MR GRAY:  No, Your Honour.

64HER HONOUR:  Do you want to accompany my associate to the dock with that document please. 

65(Orders signed and acknowledged.)

66Thank you for your assistance, Ms Moran, and Mr Gray.

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