Director of Public Prosecutions v Mocellin, Jesse Lee
[2012] VCC 2071
•19 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JESSE LEE MOCELLIN |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2012 | |
DATE OF SENTENCE: | 19 December 2012 | |
CASE MAY BE CITED AS: | DPP v Mocellin, Jesse Lee | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2071 | |
REASONS FOR SENTENCE
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Subject: Aggravated burglary, criminal damage, assault, theft.
Catchwords: Defendant aged 20; using ice heavily; broke window of girlfriend’s house; persons in house, at night; assaulted her – minor injuries; returned next day and inflicted further damage; broke car windows; no priors but subsequent offending, bad drug addiction; vulnerable, easily led, good prospects for rehabilitation.
Sentence:2 years’ YJC
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Isaacs | |
| For the Accused | Mr N Phillips |
HER HONOUR:
1 Jesse Lee Mocellin, you have pleaded guilty to three charges of criminal damage, one charge of aggravated burglary, one charge of common law assault and one charge of theft. You committed these offences over two days, the 19th and 20th of March 2012. The complainant was your former girlfriend and the offences occurred at her home.
2 At the time you were heavily under the influence of the methylamphetamine drug known as "ice", and you had not slept for days. Your relationship with the complainant had come to an end in late 2011, but apparently you held some hope it was not over. She had formed a new relationship with your best friend and you felt hurt and betrayed.
3 You went to her home that night at 10.30 p.m., the night of the 19th, and knocked on her bedroom window. She was there with her boyfriend. Her father and brother were in other parts of the house. You called out to her, saying: "Come on slut, open the door, come out here". You then smashed the window, apparently with a skateboard, and the complainant ran to the loungeroom to alert her father who called the police. You remained at the window calling out in obscene language to the complainant.
4 You then went to the front of the house and with a garden stake in each hand you smashed the window of the complainant's brother's room. He told you to go because the police were on their way and you replied with a further obscenity.
5 You then smashed the windscreen and rear driver's side window of the complainant's father's car. The police arrived but you had left.
6 The complainant left the house and went to stay with a friend, her father remaining at the house. You returned to the house when the police were there and by your own admission you hid in some bushes. Later you threw two garden stakes through the broken window of the complainant's room. The police attended again, but you had left, but not before inflicting further damage to the car, by breaking a rear passenger window.
7 You returned to the house again the next day at about 1 p.m. and again smashed the complainant's already broken bedroom window using a metal shopping trolley handle. You pulled down the cardboard covering the window and climbed in. The complainant ran from the room, pulling the door shut, and ran into the bathroom while you called out, "You fucking bitch, I'm going to kill you".
8 The complainant then tried to get out the back door but the screen door was locked so she used the other door to protect herself. You hit the glass panel with the trolley handle and it smashed, cutting the complainant's arm. You then squeezed her throat tightly so that she had trouble breathing and resulting in bruising. She was yelling at you to stop, but you pushed her head against the wall causing swelling.
9 The complainant's brother came running towards you with a weight bar and you swung the trolley handle at him, but her brother blocked it. You then ran out of the house.
10 The police found you soon afterwards walking back towards the house carrying the trolley handle, a laptop computer and several school books. You had taken the computer and books from the complainant's bedroom. When you saw the police you threw the trolley handle behind a telegraph pole and you were then arrested.
11 You were remanded in custody from 20 March until you were bailed on 28 March, but your bail was revoked on 21 May for breaching an intervention order that had been granted to the complainant. You then remained in custody until you were released on bail again on 3 July. Once again your bail was revoked on 29 October and you have remained in custody since then. You have now spent 103 days in pre‑sentence detention.
12 At the committal hearing you pleaded guilty to the charges and so you are entitled to a discount on your sentence for having facilitated the criminal justice system and avoided the need for the witnesses to have to give evidence. I also accept it as an indication of remorse and I will return to that issue later in the sentencing remarks.
13 The complainant and her father have provided victim impact statements which describe the impact upon them of your violent and frenzied attacks. She suffered from bruising and cuts but she states that the emotional effect has been long lasting and has produced significant consequences. She describes anxiety and fear and not being able to sleep in her room at her father's house. Her father explained that she left the house and no longer lived with him because of that fear, and also because she has become withdrawn and distant from him.
14 The complainant said she has found it very hard to deal with the memories of what happened and she became the victim of bullying from her circle of friends. She had trouble eating and lost weight. She fell behind at school and ultimately failed Year 12, resulting in her having to repeat it next year.
15 The complainant’s father had trouble meeting the costs of repairs to the damaged property and he states that this caused him severe hardship as he has been struggling as a single parent.
16 Your mother gave evidence and described you as a model child until you started using drugs. She said you had never been any trouble, had been a good student, you had excelled at sport and had been captain of the football team and were very good at soccer as well. She said you were never violent, but you changed once you started using drugs after you moved into a shared house with friends at the age of 18. She said your behaviour was entirely out of character and it was fuelled by drugs.
17 A somewhat different picture was evident from the history you gave the psychologist, Dr Janev, who assessed you recently. You described losing interest in school during Year 11 because of an upsetting relationship break down, and subsequent bad behaviour at school brought about suspensions and you then left school. It would appear that your mother knew nothing of this as she said you had never been suspended from school.
18 It appears that she also did not know that you had been using a variety of drugs since you left school. It was only when your use of ice escalated rapidly towards the end of 2011 that you asked your parents if you could return home to live with them and informed them that you had become addicted to the drug. You then continued to use it even after your arrest until you were imprisoned.
19 You told Dr Janev that while under the influence of drugs you had punched and broken a glass door, but your mother understood that this was just a one off outbreak of temper on your part. She said that before you began using drugs you had been a gentle, calm person, and once you had ceased using them she could see those characteristics returning. Indeed, Dr Janev described you as friendly and polite, making it easy to establish a positive rapport.
20 Your father, mother and girlfriend have all written letters to the court which confirm the positive aspects of your character and suggest you may have acquired some maturity and insight into what you did and why you made such poor judgments.
21 To return briefly to your background. After leaving school you had a series of unskilled jobs and a long period of unemployment, and finally a job as a traffic controller which you did not enjoy and as this coincided with your introduction to the drug, ice, you used it to help you cope with the job.
22 These are very serious charges and they warrant a period of imprisonment. You were aged 19 at the time of the offending and you are still 19. Because you are very young your rehabilitation is of great importance and a number of the conclusions and observations Dr Janev made in her report are directly relevant to your prospects for rehabilitation.
23 She diagnosed anxiety disorder and drug dependence disorder, which is in remission, and recommended that you be referred to a forensic psychologist as soon as possible, that you explore vocational options in the sports and fitness field, as you have indicated you wish to do, and that you engage in community activities.
24 Dr Janev was of the opinion that you are vulnerable and easily led and that you will need intensive support to safeguard against the negative influence of antisocial peer groups. She said you are at moderate risk of re‑offending. Given your age and vulnerability, detention in a Youth Justice Centre would be the appropriate place for your incarceration, rather than adult prison.
25 Unfortunately, although you had not been in trouble with the law before you committed these crimes, you have been in further trouble since then. In one sense that is not surprising given your continuing use of drugs after your arrest. You twice breached the intervention order obtained by the complainant by going to her home and you were fined for that. You were also convicted and fined for a number of driving offences, including dangerous driving.
26 You are one of a number of accused facing charges arising out of circumstances involving the trading of illegal firearms alleged to have occurred in August 2012. The charges involve kidnapping, deprivation of liberty and assaults. You were arrested for those matters on 5 September 2012 and the committal mention is listed for 6 February 2013.
27 Your offending, and here I include that subsequent offending and the alleged offending yet to be heard, was committed over a relatively short period of time when you were using drugs heavily. You have had a good upbringing but you have become vulnerable and easily led by unsatisfactory peer group influence. You do not fit the usual picture of an offending youth. You have no prior convictions and there are a number of protective factors which will give you an advantage in pursuing rehabilitation.
28 It is for those reasons that you have been assessed as suitable for detention in a Youth Justice Centre, as I say, rather than adult prison and I, accordingly, I will be sentencing you to a period of detention.
29 As I have already said, breaking into someone's house when there is someone present is a very serious offence. The maximum penalty is 25 years' imprisonment.
30 As to the other charges, the maximum penalty for criminal damage and for theft is ten years and for assault five years. I must impose a sentence that takes into account the need to warn others that this sort of criminal activity will result in a harsh sentence. You, yourself, must also be deterred from ever doing such things again. As I say, you are said to be at moderate risk of re‑offending and I can be confident that the risk will be reduced by your strong motive to change and to build a life away from drugs.
31 I ask you to stand now, please, Mr Mocellin. The details of the sentence are as follows.
32 For charge 1, damage to the windows of the house and for each of charges 2 and 3, damage to the car, six months' imprisonment.
33 For charge 4, aggravated burglary, 18 months.
34 For charge 5, assault, nine months.
35 For charge 6, theft, two months.
36 The sentence for charge 4 will be the base sentence for the purposes of cumulation. I order that five months of the sentence for charge 5 and one month of the sentence for charge 1 be served in cumulation upon the base sentence. That results in a total effective sentence of two years to be served in a Youth Justice Centre.
37 The pre‑sentence detention that you have already served is 103 days not including today. That is to be reckoned as already served and I shall note that on the court record.
38 If you had pleaded not guilty to these charges I would have sentenced you to three years' detention.
39 The prosecution seeks orders for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act, also for a disposal order in relation to the trolley handle, and a compensation order in relation to the costs incurred by the complainant’s father to fix the damage you inflicted on his property. That is an amount of $1,634.50. You have consented to those applications and I make the orders.
40 I must advise you that the police have the power to use reasonable force to obtain the forensic sample of saliva but I trust that won't be necessary.
41 Ms Isaacs, have I omitted or neglected to include anything?
42 MS ISAACS: Your Honour, there is only one thing which the prosecution previously neglected to do on the last occasion.
43 HER HONOUR: I see.
44 MS ISAACS: That was to file a notice of related summary offences stating that it is intended that charges 9 and 10, assault with weapon, be withdrawn.
45 HER HONOUR: I see.
46 MS ISAACS: That's the only matter outstanding.
47 HER HONOUR: Do I need to do anything about that or is it just to be noted in the transcript?
48 MS ISAACS: It's just to be filed with the court. The defence have been previously served with a copy, Your Honour.
49 HER HONOUR: Thank you, Ms Isaacs. Mr Phillips, anything further?
50 MR PHILLIPS: No, nothing arising from that, Your Honour. The only matter, and I'll raise it very quickly, is obviously, as I've indicated to Your Honour previously, Mr Mocellin is on remand for those other charges. As I understand it an application needs to be brought in the Magistrates' Court with respect to that to have that transferred to Youth Justice and that will be done.
51 HER HONOUR: Thank you.
ADDENDUM 52
53 I apologise for what appears to be a slip in the orders for cumulation so I'll just return to that part of the sentence and correct it in this way, and this applies just to the cumulation orders.
54 I order that five months of the sentence for charge 5 and one month of the sentence for charge 1 be served in cumulation upon the base sentence. The sentences for charges 2, 3 and 6 will be served concurrently with the base sentence and with each other. That results in a total effective sentence of two years, as I said before. The total effective sentence remains the same, the cumulation orders are slightly different.
55 COUNSEL: If Your Honour pleases.
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