Director of Public Prosecutions v Moore

[2017] VCC 804

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-00215

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL MOORE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 June 2017
CASE MAY BE CITED AS:	DPP v Moore
MEDIUM NEUTRAL CITATION:	[2017] VCC 804

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. L. Andrews
For the Accused	Ms. B. Nowak

1HIS HONOUR:  Joel Moore, you have pleaded guilty to one charge of aggravated burglary.  You have also pleaded guilty to a number of uplifted summary matters, and I do not need to go into those in detail.  They involve driving and a degree of domestic violence and are all clearly related to alcohol. 

2What I am going to do, having had discussions with counsel, is sentence you to time-served, plus a Community Correction Order and I will give the reasons for that in a moment.

3Firstly, pursuant to s.464Z of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  In other words, you will have to turn up to Morwell Police Station and give a saliva only, no blood, a saliva sample within the next 28 days, but that will be explained to you.  So that order is made and handed down. 

4You pleaded guilty at the earliest reasonable opportunity.  You  have expressed appropriate remorse in respect of these matters, and you must get the utilitarian benefit of that plea of guilty.  You are still a young offender.  You have a significant number of prior convictions of relevance but they have to be taken into account in the sense of the decision in Bugmey of a very, very disadvantaged background indeed.

5You, as a child, witnessed and were subject to violence.  The scenario like this I am simply going to give a summary of the major offence, and I will direct that the summaries of the Magistrate's Court matters simply remain on file. 

6On 9 February 2016, you were in Warragul when you were informed by your sister that she had been sexually assaulted by a man.  You and a number of others, a couple of them are known to me, then decided to go and confront this person. 

7In any event, you arrived in Hopetoun Street in Morwell and you went and others with you, yelling abuse and threats in the driveway, directing them at this Mr Pestana who had been accused of the sexual assault.  He opened his front door, walked onto the landing to investigate the noise.  As he came out, you ran up the stairs towards him, yelling further threats.  You were followed closely behind by others.  He retreated to his flat and was unable to close his wire security door, but managed to close and lock the door.

8You tried to kick the door open without success.  A bottle was thrown and you climbed in through the window and confronted him.  You started throwing punches at him and threatening that, "I'll fucking kill you, you're a dead cunt."  Others got into the house and Mr Pestano was assaulted and kicked. 

9In any event, you all took off afterwards and police eventually arrested you.  When interviewed, you made a no-comment record of interview and as I understand it, the other accused have yet to be charged. 

10It is always a serious offence, aggravated burglary, and calls for the application of general and specific deterrence in the normal event, as well as denunciation and appropriate punishment.

11Mr Pestano, the complainant in this matter, has declined the opportunity of making a victim impact statement.  I am prepared to accept on the basis of all the material before me, that the assault was in fact provoked by what had been said by your sister to you, about the sexual assault.  Whether that is actually true or not, I do not know.  There is certainly an underlying reason why all this took place.

12The reason that I am going to now impose a Community Correction Order is that you have already served some 240 days and you have been enabled during that time to dry out and get some perspective. 

13You participated in Koori Court and knowing your shyness, I was impressed the way that you spoke to the elders, showed respect for them, and owned up to your offending and accepted what you had done.  It does not get you a shorter sentence, being in a Koori Court, but at least it puts you in a situation where when you do get out, you know there are people who can help you, and if things start to go wrong, you can do something about it. 

14Your background can be very simply described.  In the reports before me, you have an effective IQ of 59 which is very low indeed.  That gives rise to an intellectual disability which then gives rise to a sensible reduction in general and specific deterrence and moral culpability. 

15I obviously refer to the decision of Muldrok.  The word, mild intellectual disability, is an extremely misleading word, and I have no doubt that you would come in well within the bottom one per cent of the entire population.  

16In the overview report it says - and I do not mean to humiliate you, but it is important that this be put on transcript I think - that you do have an intellectual disability within the meaning of the Act, and I interpolate there that I have in fact seen that certificate.

17It says that you, Mr Moore, complete your personal care needs independently and attend well to your physical appearance.  You require substantial assistance to undertake domestic tasks such as household cleaning, laundry, grocery shopping and meal preparation.  You are usually supported by your mother in these tasks.  You have poor literacy and numeracy skills, and require considerable assistance to complete tasks, such as reading mail and a newspaper or magazine or filling out forms or even making the most simple monetary transactions.  Your mother has to do those things for you.  You do communicate, it says, with clear speech and take time in conveying messages and responding to questions.  It points out, as I have noticed, that you do not maintain eye contact.  I will accept during Koori Court you did and you do your best essentially to survive in this world. 

18I also obtained a psychiatric report from Forensicare and I think I can just simply read into the transcript some of that.

19You are now 23 years of age, of Aboriginal background.  You are the only child of your parents, but have several brothers and half-brothers on your father's side and as you would know, I know your father. 

20You state that your childhood was quite disruptive and dysfunctional as your mother had heavy alcoholism problems and struggled with moods.  DHS were often involved giving support and Foster-care arrangements.  You also told the psychiatrist, and I have no doubt that it is true, that you had been diagnosed with foetal alcohol syndrome and that had come about because of your mother drinking heavily during the pregnancy. 

21You were taken away from her to State care on various occasions, and you lived in various foster and group homes.  It also meant you were split up with your younger half-brother, and that caused significant disruption in any sense of family that you have had.  It says here that you had very limited contact with your father.  You attended many different schools which is often the situation with somebody in your circumstances and that is often a disruption which gives rise to problems in later life, as I have learnt bitterly, through doing so many of these.  You were disruptive at school, as is again the usual product of that sort of upbringing.  You witnessed violence from a step-father who always had been supportive, who died of heavy alcoholism as I understand it.

22You had, and I am not going into the detail of it, but a very, very disadvantaged background indeed.  You were admitted in Traralgon to a psychiatric ward for a couple of weeks when you were around about 16 or 17, but you cannot remember why.  You do not have a core psychotic symptom that would indicate a major psychotic illness which gives me some confidence in your ability to look after yourself, but you hear voices of a deceased friend who was your best friend who had passed away in a car accident.  You describe how those voices are inside your head and appear to be related to grief and loss.  It is important, Joel, that when you commence this Community Corrections program, that you talk to people about that grief.  All right.  You can see other blackfellas about it, and  you have got to deal with it, okay.  So many of the young fellas that we get sitting in there, you have got this death that has never been dealt with, often because you are inside when it happens, and cannot get to the funeral.  So, it is important that you do that, and I am taking all those matters into account in this sentencing process.

23Tendered on your behalf, again which I have read obviously, is the report of Dr  Lechner, the Justice Plan overview, the psychiatric report and a psychologist report from one Heather Watson.  I have received a Justice Plan and had you assessed by Community Corrections and they are prepared to accept you for a Community Corrections Order.

24That order, or firstly you have been imprisoned for a period of 240 days, and I reckon that 240 days be reckoned as having been served under this sentence. 

25You will then, if you agree, and I am sure you will, be put on a Community Correction Order for a period of two years which as I understand, is the longest a Justice Plan can operate for.  The conditions of that will be supervision, compliance with the Justice Plan which I think is put in under programs to reduce further offending, and in your case, Drug and Alcohol and Mental Health.  So they will be the conditions, and as I say it will be for two years and obviously will be with conviction.  In a situation where he has done so much gaol I am not going to impose work hours, which is double punishment I think.

26Section 6AAA.  I know they have amended it so when it is a sentence and Community Correction Order I am supposed to do it, but how on earth would I know what I was going to do with all this.  I think the safest bet is to say that but for your plea of guilty, I would have sentenced you to be imprisoned for two and a half with a one and a half. 

27OFFENDER:  Thank you.

28HIS HONOUR:  Okay mate.  Yes, just adjourn. 

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