Director of Public Prosecutions v McColl. Lauchlan James
[2012] VCC 1972
•22 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-12-01829
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAUCHLAN JAMES McCOLL |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 22 November 2012 | |
DATE OF SENTENCE: | 22 November 2012 | |
CASE MAY BE CITED AS: | DPP v McColl. Lauchlan James | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1972 | |
REASONS FOR SENTENCE
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Subject: Aggravated burglary – Home invasion – Renzella time
Catchwords:
Legislation Cited:
Cases Cited: R v Renzella [1997] 2 VR 88 – Wheldon v The Queen [2011] VSCA 83 - El-Waly v The Queen [2012] VSCA 184
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S.A. Flynn | Office of Public Prosecutions |
| For the Accused | Mr D.A. Glynn | Wightons Lawyers |
HER HONOUR:
The Offence
1 Lauchlan James McColl you have pleaded guilty to one charge of aggravated burglary. The maximum penalty for this offence is 25 years.
Circumstances of Offending
2 The circumstances surrounding this offence are that on Friday, 7 October 2011, Benjamin Black, who was aged 15, received threatening phone calls and texts from a Karl Morrell. At the time, Benjamin was staying at 23 Kanyanya Avenue, Clifton Springs with Kiera and Leah Balzan, their friends Kaisie Davies and her 13 month old daughter and three other young men.
3 Later that night, Karl Morrell, Robert Harris and Corey O'Farrell went to the house to confront Benjamin but they were chased away. They then meet up with you and some other males and went back to the house at about 1.30 am. One of your co-accused was carrying a stick or pole and another was observed outside the house with a fence picket. You and your co-accused broke into the house through the back door which was damaged by one of you kicking it in.
4 In addition, one of your co-accused smashed the window of a room in which a 13 month old chid was sleeping. There was yellings and threats made by your co-accused to harm the victims. Kaisie Davis was screaming that her daughter was in the house. Kiera Balzan rang the police and when you saw her with the phone you told your co-accused to leave. You took one of them out with you, you got into a car and left the premises. Damage to the window and the door was estimated at about $1000.
5 You interviewed regarding this incident on 27 October 2011 and made admissions which, in essence revealed that you did not yourself intend to bash anyone but you were aware that your co-offenders were going to the house to get Ben who they believed had bashed someone else.
Personal circumstances
6 Your counsel outlined your personal circumstances to the court. You were born on 9 February 1991 so you are now 21 years old. Your father works at a chemical plant and your mother as a personal carer in an aged care facility. You have two older sisters and neither of them have been in any trouble with the law. You attended a local school in Newcomb to Year 10 and then started an apprenticeship as a cabinet maker. You have had some employment since you left school.
7 However, your main ambition in life had been to play AFL football. Apparently you were a promising junior playing for the Geelong Falcons which is a feeder team for the AFL. Unfortunately, you injured your shoulder and this effectively ended any prospects of a career in that level of football.
8 This apparently contributed to you drinking heavily and becoming angry with the way your life had turned out. It also contributed to your offending and I note that you have had 15 prior court appearances.
9 The first one was at the Geelong Children's Court on 20 March 2006 and the most recent was some three months ago when you effectively received a six months' sentence to serve four months with two months being suspended for two years.
10 This was for offences committed on the 31st August 2011 and the 30 October 2011, around about the same period as the offence for which I am sentencing you now.
Defence sentencing submissions
11 Your counsel acknowledged in his sentencing submissions that given your priors and the nature of your offence a sentence of imprisonment was called for. However, he submitted that this sentence should be a relatively short one and in single digits - to use his words - and also concurrent with the sentence you are now serving. This was because, in essence, that if your matter had been dealt with by the Magistrate at the same time for those which you are now serving the sentence there would have been concurrency.
12 The other matters your counsel relied on in mitigation of your offending included that you had pleaded guilty at an early stage. You had shown remorse and you had gone to the house of the victims and apologised to Mrs Balzan.
13 You were a young offender and you had prospects of rehabilitation. You had a ten month period where there had been no offending. You had family support and your family were only not here in court today because of the short notice for this plea.
14 You had recognised that you had a problem with alcohol and had attended Alcoholics Anonymous twice weekly and intended to do so on your release. This was your first time in custody and you had completed a number of vocational certificates whilst serving your sentence.
15 In addition to these mitigating matters your counsel submitted that although you were the eldest of the offenders on the night you were not the instigator or leader. He also urged the court to take into account in a general sense the sentences that have been given to your co-offenders in the Children's Court.
16 These were for Jordan Hartwell-Wood and Joshua Davy - good behaviour bonds without conviction and for Adam Kotwic probation without conviction for six months. There are still two co-offenders to be dealt with.
Prosecution sentencing submissions
17 The sentencing submissions for the prosecutor were that an immediate term of imprisonment was called for in the range of 18 months to two years and six months with a minimum of 9 to 15 months.
18 While your mitigating factors were acknowledged and concurrency was not disputed the prosecutor submitted that the offence involved a home invasion by a significant number of young males.
19 There was damage to a window and door. It would have been a frightening experience for the occupants, in particular, the mother of the young child. Given these circumstances it was submitted that general and specific deterrence as well as denunciation of your conduct and protection of the community were important considering sentencing considerations.
Renzella time
20 Before moving on to sentence you it is necessary to deal with an issue of law with respect to the fact that you are currently serving a four month sentence on unrelated matters. Your counsel relied on the amendment to s.18(1) of the Sentencing Act to essentially submit that the court should take this period into account as pre-sentence detention.
21 However, the prosecutor disputed that s.18(1) of the Sentencing Act applied in this way. He referred to two decisions of the Court of Appeal regarding this issue Wheldon v The Queen [2011] VSCA 83 and El-Waly v The Queen [2012] VSCA 184.
22 It is apparent from these authorities that the Renzella, as it is called, discretion permits a sentencing judge to take account of a period which the offender spends in custody which is unrelated to the offence for which the offender is currently being sentenced even if that period is not covered by s.18.
Sentencing remarks
23 In sentencing you, given that the offences you are serving were committed around the same time as the one I am sentencing you on I have taken this into account as Renzella time.
24 I have also taken into account all the mitigating factors mentioned by your counsel. You are entitled to a discount for your plea of guilty and I have given you one.
25 I have taken into account your youth and reasonable chances of rehabilitation and all the other matters mentioned by your counsel.
26 Please stand up. However, I must also take into account specific and general deterrence and the need for denunciation of your conduct. While you were not the instigator of the house invasion you went along with this younger group of males into a situation where you knew they wanted revenge for a supposed bashing.
27 Unfortunately vigilante action such as this are not common in the community and the Court of Appeal has made clear on a number of occasions that such conduct is totally unacceptable in a civilised society.
28 People simply cannot take the law into their own hands in this way and not expect to face the consequences. The Victim Impact Statement in this case make it clear that both Leah and Kiera Balzan and their mother have been adversely affected. Kiera does not like to be home alone anymore and Leah suffers from panic attacks and flashbacks.
29 On the charge of aggravated burglary you are sentenced to 13 months' imprisonment. I fix a non-parole period of five months.
30 As I have already stated both the head sentence and the non-parole sentence allows for the three months you have already served as being Renzella time. Counsel can do the maths.
31 But for the plea of guilty you would have been sentenced to two years and six months to serve 15 months.
32 You would be pretty aware by now that really having just served your first sentence that unless you deal with your issues of alcohol and your issues of anger this could be the rest of your life. All I am going to do is ask you to take a really close look at the guys that you are serving your sentence with and ask yourself "At the age of 21 is this how I want to turn out?"
33 I mean, this now is the adult court jurisdiction and sentences are longer and they will increasingly get longer as time goes on. Take a seat.
34 For counsel, effectively really that means it would have been 16 months without Renzella with a non-parole period of what - seven, was it not?
35 MS FLYNN: Eight, Your Honour.
36 HIS HONOUR: Eight. Yes, and it is concurrent with other sentences being served. So, once he finishes this month he effectively has four more months.
37 MS FLYNN: As Your Honour pleases.
38 MR GLYNN: Thank you, Your Honour.
39 HER HONOUR: Is there anything - - -
40 MS FLYNN: There is just the 464 and the Disposal Order.
41 HER HONOUR: In relation to the 464ZF I make the order on the basis that it is by consent, am I right?
42 MR GLYNN: I did not actually get instructions, Your Honour but I did not seek to make any submissions about it.
43 HER HONOUR: I will just speak to your client and see what he says. (To prisoner) Under the law the police can take a scraping from inside your mouth. It is just with cotton wool. It is just a swab. That goes onto a database because of the crimes that you - in fact, I am surprised that it has not - have you had that done before?
44 PRISONER: No.
45 HER HONOUR: Once you have committed a few crimes that is what they do. It goes onto the database. If you were to resist that they can use all necessary force to prevent you from resisting it. Most people simply consent to it because, as I said, it is not an invasive or painful procedure. It is up to you as to whether you consent to it or not. You can speak to your barrister if you want.
46 PRISONER: Yeah, I'm fine with it.
47 HIS HONOUR: All right. In that case, it is by consent because of the nature of the offending and it is in the interests of the community. Was there a disposal?
48 MS FLYNN: Yes, there was a disposal, Your Honour. Just with the two poles that had been located.
49 HER HONOUR: I make the Disposal Order in relation to the two poles.
50 MS FLYNN: Thank you, Your Honour.
51 HER HONOUR: There being nothing else, I will adjourn the court.
52 (Prisoner removed.)
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