Director of Public Prosecutions v McFarlane

[2021] VCC 1773

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01775

DIRECTOR OF PUBLIC PROSECUTIONS

v

Kemp McFarlane

---

JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF SENTENCE:	8 November 2021
CASE MAY BE CITED AS:	DPP v McFarlane
MEDIUM NEUTRAL CITATION:	[2021] VCC 1773

REASONS FOR SENTENCE
---

Subject:Home invasion

Catchwords:              Guilty plea – bungled break-in – lesser role than co-offender - young first offender - impressionable and vulnerable – substantial and compelling circumstances established

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Farmer [2020] VSCA 140; Boulton v The Queen (2014) 46 VR 308; Williams v The Queen [2018] VSCA 171

Sentence:                  18 months CCO without conviction

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A McKenry	Office of Public Prosecutions
For the Accused	Ms R Khan	KPW Lawyers

HIS HONOUR:

1You have pleaded guilty to one charge of home invasion.

2The circumstances of your offending are set out in the Summary of Prosecution Opening[1] . They are agreed facts.

[1] Exhibit A.

Circumstances of offending

3On 28 November 2020, Cameron Tredrea was at your home in Albury. After you had taken prescription medication together, Tredrea came up with the idea to do a “run through” of a Wodonga home where another young man, Tristen  Brunnenmeyer, who had previously sold cannabis to both of you, lived. You agreed to go with him.

4Around 9 pm, you went, in your car, to Brunnenmeyer’s house around 9 pm. Before you went inside, you both put on balaclavas. Tredrea armed himself with a tyre lever and you were carrying a hammer.

5Together, you entered the house through an unlocked laundry door and walked past a teenage girl, Amelia Howlett, in the lounge room, to Brunnenmeyer’s bedroom. Tredrea woke him and demanded money and drugs. Brunnenmeyer recognised his voice. When Brunnenmeyer said he did not have any of either, Tredrea asked for anything of value.

6Brunnenmeyer led the two of you out of his bedroom, then he turned and grabbed an ornamental machete from the bedroom wall. Waving the machete over his head, he told Tredrea and you to “get the fuck out of my house before you get sliced”. When Tredrea tried to hit Brunnenmeyer with the tyre lever, Amelia Howlett grabbed him from behind. Brunnenmeyer’s father grabbed the hammer from you and ripped the balaclava from your face. He struck you to the head with a hammer and you fled from the house.

7You got into your car and drove to the front of the house but when Brunnenmeyer, who had not recognised you, chased you, you drove off. Brunnenmeyer’s father tackled Tredrea and held him until police arrived. He told police he had gone to the house to try to get back his girlfriend’s cat which Brunnenmeyer had taken. He named someone other than you as his accomplice.

8You went to the Albury hospital where a laceration to your head was closed with glue and you were given analgesics for pain. I have seen a photograph of your injury.[2]

[2] Exhibit 3.

9Tredrea subsequently told police you had been with him.

10When police were looking for you, you called them and agreed to attend the Wodonga police station on 7 December.

11When you went to the police station, you were arrested and interviewed.

12You told police:

·        You had done a lot of Xanax on the night of your offending;

·        You made the stupidest decision of your life;

·        You did not know what on earth you were thinking; and

·        You remembered the hammer but you did not really remember driving there

·        You remembered escaping.

13You said:

·        Once Tredrea had the idea things moved quickly; and

·        The hammer was his and the tyre lever was in your car.

14You said you tiptoed into Brunnenmeyer’s room then you started freaking out and it was chaos.

15You said you did not know Brunnenmeyer and you were not sure why you were there.

16You said you would not have used the weapon you were carrying.

17You said you did not remember driving to the hospital and described your head injury as “pretty horrendous but well-deserved”.

18You are sorry for what you have done. You said you would never wish it on anybody, and no one should have to experience something like that and, if you were sober, you would not have done it.

19You were charged and released on bail.

20At the committal mention, you entered a guilty plea.

Criminal record

21You have no criminal history.

Personal circumstances

22You were born in February 2000 in Western Australia. You were 20 years old when you offended. You are now 21.

23Your personal circumstances are set out in the psychological report of Sandra Cokorilo who assessed you on 8 September 2021.[3]

[3] Exhibit 2.

24When you were an infant, your family moved to Victoria. You have a younger sister and three older maternal half siblings. Tragically, one of your half-brothers died in a work-related accident in 2012.

25When you were 5 years old, your parents separated. They shared custody until you were 13 years old and then you went to live with your father full-time. In late 2020, you left home because your father was unhappy with your drug use and you moved in with your then partner.

26You told Ms Cokorilo you had a good relationship with both your parents until your drug use became a problem.

27You went to local schools and describe yourself as an average student.

28You left school in year 11 after you started abusing benzodiazepines.

29You had suffered anxiety and panic attacks as a child. When you were 16, you were prescribed an antidepressant but took it for only 6 months because you did not find it helpful. You started abusing Xanax. Benzodiazepines seemed to control your symptoms. You said you were taking benzodiazepines in excessive amounts for about 3 years. You stopped when you were arrested for this offending.

30In January 2020, you got work at the Australian Taxation Office. In February 2021, you lost your job due to the charge before the court. You are looking for work presently.

31In August 2020, your GP referred you to a counsellor for help with your anxiety, depression and substance abuse. You have seen a psychologist, Matthew Ryan, eight times between September 2020 and September 2021. Mr Ryan reported you engaged well in all therapy sessions and you have worked hard to reduce your substance abuse. Your focus has been to maintain your current health and well-being. He recommends regular continuing sessions for you.[4]

[4] Exhibit 2

32I received character references from your older sister,[5] your aunt,[6] your grandmother[7] and a grand aunt.[8] 

[5] Exhibit 4.

[6] Exhibit 5.

[7] Exhibit 6,.

[8] Exhibit 7.

33They are aware you suffer anxiety, related to your parents separation, the absence of a stable role model in your life and the sudden death of your stepbrother at work when you were 12.

34They are also aware you have self-medicated with prescription medication which led to the trouble you are now in.

35They describe you as shy and “sometimes timid”.

36Your offending is substantially out of character with the person they know.

37I was told you had met your co-offender only the week before through your then partner.

38Your family describe you as remorseful and determined to address your drug abuse.

39You are living with your grandmother. She has been supervising your drug screening which, after two early positive tests, has been negative. You are helpful at home and you take her to her medical appointments.

40You told Ms Cokorilo you barely remember the episode of your offending as you were highly affected by excessive consumption of Xanax. As she wrote, it impaired you decision-making.

41She assessed your risk of reoffending as moderate. She noted abusing benzodiazepines is your biggest risk factor.

42In Ms Cokorilo’s opinion:

·        Because of your youth and relative immaturity, exposure to negative peers in prison would likely have a negative effect on your development and future behavioural outcomes; and

·        Because of your history of anxiety and panic attacks, you would be vulnerable to deterioration of your mental health in the volatile and unpredictable custodial environment.

Defence submissions

43In written and oral submissions, your counsel, Ms Khan, submitted your offending was not a more serious example of home invasion considering:[9]

·        It was opportunistic, unsophisticated and lacked considered planning;

·        It was your co-offender who instigated the idea;

·        He made the demands for money and drugs; and

·        The two of you were overwhelmed by the home occupants.

[9] Exhibit 1.

44She relied on the following factors in mitigation of penalty

(a)   Your remorse evidence by:

(i)Your full and frank admissions when the police questioned you;

(ii)Your expressions of remorse to your family and Ms Cokorilo; and

(iii)Your early guilty plea;

(b)   The high utilitarian value of your guilty plea, particularly during the COVID-19 pandemic;

(c)   Your youth; and

(d)   Your lack of any criminal record.

45She also submitted:

·        Your efforts to address your substance abuse by:

§Voluntarily engaging in counselling; and

§Abstaining from use of benzodiazepines, with strong family support;

·        Your very limited criminal record; and

·        Your compliance with bail and no further offending

demonstrate your prospects of rehabilitation are reasonable.

46Quite properly, she informed me, at Albury Local Court on 10 February 21 you were placed on a conditional release order without conviction for 12 months for larceny (shoplifting) which you committed on 23 November 2020. You told Ms Cokorilo you committed that offence to try to get prescription medication.

47Ms Khan submitted all sentencing objectives can be met by a CCO in your case.

48She submitted also, because you are a young man without any conviction recorded against you, I should not record a conviction in this instance.

49Acknowledging the operation of the sentencing regime for a category 2 offence, she submitted, in all the circumstances, there are “substantial and compelling circumstances that are exceptional and rare and that justify” not imposing a sentence of imprisonment.

Prosecution submissions

50Mr McKenry, who appeared for the prosecution, fairly, and helpfully, submitted a CCO is within sentencing range considering:

·        You are a young man who is to be sentenced as a first offender;

·        Your crime was a botched attempt to steal from Tristen Brunnenmeyer;

·        You were injured in the course of the struggle which followed with his family;

·        You played a lesser role than your co-offender; and

·        Your early guilty plea has high utilitarian value.

51He acknowledged parity with your co-offender is relevant sentencing factor.

52He submitted, because of the seriousness of the crime you committed, a conviction should be recorded.

Consideration

53The maximum penalty for the offence of home invasion is 25 years’ imprisonment.

54It is a category 2 offence which requires the court to impose a prison sentence unless “there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order”[10] for imprisonment. It is a strict test.[11]

[10] Sentencing Act1991 (Vic) s 5(2H).

[11] Farmer [2020] VSCA 140 [52].

55In determining whether there are substantial and compelling circumstances:

·        I must regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes.

·        I must give less weight to your personal circumstances than to the nature and gravity of the offence.

·        I must not have regard to your early guilty plea, your prospects of rehabilitation or parity with your co-offender’s sentence.[12]

·        I can and do have regard to your absence of previous convictions or findings of guilt and the nature and gravity of your offending.

[12] Sentencing Act1991 (Vic) s 5(2H).

56Yours was a bungled attempt to commit a serious crime. Your co-offender was the instigator and you were the follower. You yourself made no threat or demand and caused no harm. Brunnenmeyer’s family were entitled to protect themselves against your co-offender and you, and they did. They overwhelmed you and, in the course of the struggle, you sustained a nasty head laceration which, as you described it to police, was “well-deserved”.

57You had met your co-offender only the week before. He was 3 years younger than you. Under the influence of prescription medication, you agreed to his foolish plan. It shows you are an impressionable and immature young man who is vulnerable to the bad influence of others.

58I accept exposure to antisocial peers in jail would likely have a negative effect on your development and future behaviour and, because of your history of anxiety with panic attacks, you would be vulnerable to deterioration of your mental health in the volatile and unpredictable custodial environment.

59Overall, notwithstanding Parliament’s intention that a prison sentence ordinarily should follow conviction for the offence of home invasion, I am satisfied the cumulative impact of the circumstances of your case justify a departure from that course.[13]

[13] s 5(2I)(a) and (b)

60As the Court of Appeal said in Farmer, at [52]:

In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases, a term of imprisonment or youth detention would be entirely unjustified, counter-productive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice.[14]

[14] Farmer [2020] VSCA 140 [52].

61A CCO can achieve the punitive and rehabilitative purposes of sentencing for very serious crimes.[15]

[15] Boulton v The Queen (2014) 46 VR 308.

62In Williams v The Queen [2018] VSCA 171, the Court of Appeal said, at [47]:

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimize the risk of re-offending by promoting the offender’s rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.

63Overall, despite the seriousness of your crime, I am satisfied a community corrections order can achieve all sentencing purposes in your case.

64As I consider there should be some punitive component to your sentence I will include a community work condition in your CCO together with a supervision condition.

65Also, because of your history of anxiety with panic attacks and admitted benzodiazepine abuse, I will also include drug and mental health treatment and rehabilitation conditions.

66Please stand Mr McFarlane.

67By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

68Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, for the offence of home invasion you are sentenced to a CCO which is to commence today.

69The duration of the order is 18 months.

70In addition to the core conditions I impose the following special conditions:

(a)   You are to perform 200 hours of unpaid community work;

(b)   You are to attend for drug treatment and rehabilitation;

(c)   You are to attend for mental health treatment and rehabilitation; and

(d)   You are to attend for supervision.

71I direct up to 75 hours of drug and mental health treatment and rehabilitation can be credited towards your community work hours.

72Your co-offender pleaded guilty to charges of home invasion and unlawful assault at Wodonga Magistrate’s Court on 13 August 2021. The charges were proven and dismissed without conviction. His criminality was greater than yours. And, although he was younger than you, I am satisfied he led you into this offending.

73The parity principle is applicable. Its purpose is to ensure consistency in punishment.

74Notwithstanding the seriousness of the crime you committed, considering your co-offender’s sentence, your remorse, which I regard as genuine, and your prospects of rehabilitation, which I assess to be very good, I will not record a conviction against you.

75With your consent, I make the disposal order in the terms of the order filed with Court.

76While there is some artificiality process, I declare, for your plea of guilty, I would have imposed an aggregate sentence of 18 months’ imprisonment and fixed a minimum non-parole period of 9 months’ imprisonment.