Director of Public Prosecutions v O'Brien
[2021] VCC 232
•18 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00932
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REID O’BRIEN |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2020 (Plea) | |
DATE OF SENTENCE: | 18 March 2021 | |
CASE MAY BE CITED AS: | DPP v O’Brien | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 232 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of Guilty – one charge affray – one charge intentionally damage property – one charge attempted aggravated home invasion – youthful offender - deferral of sentence - circumstances of COVID-19 pandemic.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Boulton v The Queen (2014) 46 VR 308; DPP v O’Brien [2019] VSCA 254; DPP v Wol [2019] VSCA 268
Sentence: Total effective sentence 30 days imprisonment with a Community Corrections Order of 36 months and a fine of $1000
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Michelle Zammit | Office of Public Prosecutions |
| For the Accused | Daniel Sala | Haines & Polites |
HER HONOUR:
Pleas of guilty and maximum penalties
1 Reid O’Brien, you have pleaded guilty to one charge of attempted aggravated home invasion, which carries a maximum penalty of 20 years imprisonment, one charge of criminal damage, which carries a maximum penalty of 10 years imprisonment and one charge of affray which carries a maximum penalty of 5 years imprisonment . You have also pleaded guilty to one charge of committing an indictable offence whilst on bail; this carries a maximum penalty of 3 months imprisonment, or 30 penalty units.
Circumstances of the offending
2 The facts giving rise to your offending are set out, in detail, in the Summary of Prosecution Opening that became Exhibit 1 on the Plea. That document is attached to and forms part of these reasons. I will not repeat it here, but will refer to some of its contents in summary.
3 On the afternoon of 23 March 2020, 17 year old Lyrehs Murray and 16 year old Jackson Walker were walking along Carmichael Drive, Wyndham Vale, along with three cousins. The two boys lived together, with others, at 20 Munro Drive, Wyndham Vale.
4 They all stopped outside 12 Carmichael Drive where Mr Murray spoke to a friend. You were at that address. With you, in and around the garage of the house, were about 5 to 10 other young men.
5 As Mr Murray and his cousins started walking away, you called out to him in an aggressive tone: “Are you all good?”. He replied, “Yeah, are you all good?”. You said something to the group you were with, which caused them to walk away from the garage . You asked Mr Murray to “come here” repeatedly; he and the group he was with, walked away.
6 This exchange, in which you and Mr Murray both claimed that you were “all good” apparently underpinned what happened next, and which caused, for a period, your neighbourhood to be turned upside down.
7 Later that day, at about 4.40 pm, you and your associates were drinking alcohol and generally being loud in a park near Munro Drive in Wyndham Vale.
8 Mr Murray and Mr Walker, from the earlier exchange, and the other members of the household they lived in, could hear you from their place in Munro Drive. Mr Murray, Mr Walker and about six other young men left their house and walked towards your group. When they approached, you and your associates ran off. Mr Murray, Mr Walker and their associates gave chase.
9 During the chase, a member of your group fell; he was then assaulted by three members of Mr Murray’s group. You and other members of your group then decided to take large rocks, from a residential garden bed, and walk towards Mr Murray and his group.
10 Eventually, the member of your group was released and walked towards your group to re-join it; the two groups were finally facing one other in the middle of Munro Drive. A member of your group somehow then appeared on the scene driving a black Holden ute at speed towards Mr Murray’s group, nearly hitting Mr Walker, before driving off.
11 You and the others then chased Mr Murray’s group, still holding your garden rocks. Another member of your group had, by then, somehow obtained a hammer and joined the chase. You then collectively chased Mr Murray’s group back to their place, where you and other members of your group, finally threw the garden rocks you were holding at members of Mr Murray’s group, some of which found their marks. This conduct gives rise to Charge 1: affray.
12 You and your group then ran off, but not before threatening to return later.
13 Police were notified and attended. Nobody made a statement.
14
Later on that day at 5.47pm you went to a nearby supermarket with
a member of your group, where he stole a 15cm kitchen knife.
15 At 8.45 pm that same day, you and your group were again yelling in the parkland near Munro Drive. Mr Murray and Mr Walker could hear you from their place again.
16
Other members of the household with Mr Walker left their house, taking the children with them, apparently afraid of what might happen.
Mr Walker, Mr Murray and a Mr Mohi remained inside.
17 Shortly afterwards, two members of Mr Mohi’s family arrived, Mr Kepa Finau and Ms Schveilah Broughton. Mr Finau walked towards the park, where he heard your group talking and yelling. As he was walking back, he heard people behind him, he told one of the young men to “fuck off”. As Mr Finau continued walking, a white sedan sped around the corner and almost hit him; he was forced to jump on to the bonnet of the vehicle, before getting off and running away.
18 You and your group started walking down Munro Drive. Members of the group carried large knives. Mr Walker, Mr Murray and Mr Mohi saw your group coming. They retreated inside, and locked their door behind them. Mr Finau, who was still outside the house, quickly returned to the front of the house but one member of your group, who was holding a knife, attacked him. Mr Finau was able to disarm him before going inside the house and barricading the front door. You are not charged with, and I am not sentencing you for, that event.
19 You and your group then set about destroying two cars parked in the driveway and on the nature strip of the house. This gives rise to Charge 3: intentionally damaging property.
20 You, with members of your group, then tried to force the front door of the house open. The people inside heard threats: members of the group said they would smash the door open, run through the house and kill those inside.
21 You then attempted to kick the front door down. Eventually, you were able to open the security door, and then splinter the inner door around the lock area. Your group managed to force open the front door, but Mr Finau was able to push back and hold the door closed. He put a table against the door on the inside.
22 You were, by then, armed with a large black handled knife, you used the knife to crack open a front window. The knife pierced the window glass and almost made contact with Mr Finau’s neck, before you pulled the knife out and repeatedly tried to stab Mr Finau.
23 Other members of your group tried striking a front window. When that failed, some of your group chose to pick up the mailbox and use it as a ram against the front door.
24 Next, two members of your group smashed the front bedroom window with two large tree stumps. Those inside barricaded the door into this room from the inside. These events give rise to Charge 2: attempted aggravated home invasion.
25 Meanwhile other members of the Walker household drove past their house, saw what was happening there and called triple zero.
26 Police arrived; you and your group ran off. This departure was recorded on CCTV footage; it shows you carrying a large knife and black bag.
27 These events constituting the attempted aggravated home invasion took approximately 5 minutes. This is an estimate of what occurred between two events caught on CCTV between 8.58 pm and 9.08 pm.
28 Police found you a short time later. You were sitting in a car about 200 metres away from the house. You had blood on your hands, face and mouth. You were arrested and taken to Werribee Police Station.
29 A number of the members of your group were also found by Police around this time.
30 The damage to the cars and outside of the property was extensive: a grey BMW had its tyres slashed, the front windscreen broken, the bonnet was caved in and both side mirrors were partially detached from the car. The cost to repair the car was $1070.
31 A Subaru belonging to a member of the household, was also damaged beyond repair. It was valued at $22,240.
32 The damage to 20 Munro Drive, Wyndham Vale was valued at $10,441.
33 At the time of this offending, you were on bail for charges of affray and possessing a controlled weapon (a knife); this relates to an incident that occurred at the Wyndham Vale Shopping Centre on 21 December 2019.
Arrest and interview
34 A record of interview was commenced on the day of your arrest; you exercised your right to silence and were released from custody. On 9 April 2020 you were arrested again, and again exercised your right to silence.
Prior criminal history
35 You have one prior conviction recorded on 4 September 2019 for assaulting and resisting a Police officer; you were fined $1000 without conviction.
Co-Offenders
36 As at the timing of the filing of Police submissions in this case, the cases against your co-accused are still unfolding. Some of those charges will be determined in the Magistrates' Court; one other is contesting the charges at committal hearings. No parity arguments were raised on your plea.
Pre-sentence detention
37 You spent 30 days in custody prior to being granted bail. Although you were in the youth section, this was adult gaol.
Nature and gravity of the offending
38 It is difficult to find words to describe your offending. Your barrister used the word “animalistic” but I do not adopt this term, animals do not tend to destroy their own environment and attack one another in a way that is so purposeless. It was breathtaking, lawless violence, committed against people in your own community and their property for no apparent reason other than to indulge some desire for a confrontation over nothing. Your barrister described the offending as serious and troubling. What you did was outrageous. The Prosecution submitted that the attempted aggravated home invasion was a serious example of this offence having regard to the presence of weapons, your use of a weapon, the persistence of your attempt to enter, and what was said during the event. The criminal damage charge was also said to be a serious example of the offence, though it is also said that that you were not solely responsible for this damage.
39 I make it clear that I am sentencing you for your role in the charges before the Court and only those charges; that said, your role was central to what occurred. These are grave examples of the offences.
40 Moreover, you were on bail when you committed these offences; this is relevant, particularly so, when I calculate the role for specific deterrence.
41 There is little that can be said about why you offended in the way you did. It appears that some minor offence was caused, in some meaningless exchange between the two groups, and retribution was sought in that context. In other words, it was a fight over absolutely nothing, perpetrated by you and your co-accused, who had become apparently bored and listless and sought to find some meaning in the day by behaving badly.
Personal circumstances
42 You grew up in the Wyndham Vale area. You were 19 at the time of the offending and are now 20. You have two younger brothers, they are both at school. Your parents separated when you were about two years old. Your mother separated from your father in the context of his use of drugs. She has raised you and your brothers with the support of her father and her brother. You showed yourself to be a talented basketballer. So talented, in fact, that you attracted interest from the ‘scouts’ from the United States college basketball system. At one stage it looked as though you might be selected, however, your poor academic performance ultimately caused them to pass over you.
43
On the plea, your barrister called evidence from your mother, Kelly Smith. She described how around the time the basketball scouts became interested in you, you were very involved in local sport. It kept you busy, and was your main interest. You were 17 years old at the time the option for you to study in the United States was withdrawn. Your mother describes how at this point you lost all interest in school and sport and fell into a rut. She described how you entered a malaise from that point. You became disheartened. You left school in
Year 11. You found yourself associating with other young people who had also abandoned their education. You were directionless. You used alcohol and illicit drugs.
Impact on victims
44 I must consider the impact on victims in this case. The victims in this case were all given an opportunity to make statements about the effect of your offending on them; none chose to do so. The victims of the affray are perhaps harder to identify but I take into account that there were people, not specifically identified, who were exposed to this ridiculous behaviour as they went about their normal lives, no doubt with their own problems and difficulties, but being subjected to this additional burden of your conduct. I think it is safe to infer that the people inside the house were distressed and frightened by what you did and I take that into account.
Matters in Mitigation
Plea of guilty
45 I turn now to some matters in mitigation. First your plea of guilty. Your case resolved quickly. The offending took place in March 2020 and by 28 October 2020 you were arraigned and your plea commenced. The indictment contains a very lengthy list of witnesses, many of whom would have been required to give evidence to prove the case against you. None of them have had to come to court. The community has been spared all of the costs, both human and financial, of having to prove the case against you; this is a very important matter that I take into account.
46 Moreover, at a time when the court system is much burdened by the backlog of cases that occurred as the result of the COVID-19 pandemic your plea of guilty has a particularly special significance. I also accept that an aspect of remorse resides within your acceptance of responsibility.
Prospects of rehabilitation
Family support
47 At the original plea hearing on 28 October 2020 your mother gave sworn evidence and described how you had changed after your release from gaol. She said that you look and sound like the person that she knew before.
48 On the same occasion your grandfather, Mr David Smith, also gave impressive evidence. He was present during the bail application in 2020 and from that time restructured his life around caring for you. He and his wife arranged to move in with his own mother, your great-grandmother, now 90 years old, at her home in Port Melbourne. You had the very good fortune to be invited to join this household.
49 Further, your grandfather arranged an introduction to an employer in the construction industry, and introduced you to his union. In this way you found yourself both employed and represented in the workplace. By late October 2020 you had been consistently working in the construction industry six days a week (not every Saturday, but most.)
50 Mr Smith gave evidence, how he got you up in the morning at 4:30 am, to take an Uber to Flinders Street Station, because the first bus from South Melbourne is not until 5:30 am. Mr Smith described how you travelled by train to Flinders Street, then to Collingwood and then from Collingwood by bus to Doncaster to work on a construction site each day. He gave evidence that you don’t see any of your old mates from the Wyndham Vale area anymore.
51 Mr Smith described how you had been helping care for your great-grandmother and generally assisting your family.
52 Further, Ms Boland gave oral evidence on the plea. She was your supervisor on bail from 3 August 2020. She gave evidence of your consistent engagement with the conditions of your youth bail.
Character references
53 I have also had regard to the letter of Mr Stephen Long, who is an official with your union. Mr Long writes that in the time you were working, all reports back from your employers have been positive. You show initiative, are punctual, have not taken any days off and that you thrive on working in a team environment. Again, you are very fortunate to have Mr Long’s ongoing commitment to you and your family.
The plea hearing
54 At the conclusion of the plea hearing on 28 October 2020, the Prosecutor conceded that you had done remarkably well while on bail and that you have excellent prospects of rehabilitation. I agree with her. The Prosecutor also submitted that other sentencing factors overwhelm that fact and are instead weighted in favour of the need to commit you to a further period of imprisonment. She submitted that this was a very serious example of the offence of attempted aggravated burglary. She referred the court to two cases (DPP v O’Brien[1]and DPP v Wol[2]). I have read those cases and others in their category and considered them.
[1] [2019] VSCA 254
[2] [2019] VSCA 268
55 The Prosecutor’s ultimate submission, at least at that time, was that the seriousness of the offending demanded further incarceration, though at that stage, her instructions were that a prison term in combination with a Community Corrections Order would not be outside the range. The submission was that the time already served by you in custody - 30 days - was insufficient, taking into account current sentencing practice, the need for specific deterrence, denunciation and community protection.
56 Your barrister submitted that I should defer sentence, pursuant to section 83A of the Sentencing Act 1991 so that your prospects of rehabilitation could be further assessed, and to allow you to demonstrate that rehabilitation had taken place.
57 As at 28 October 2020 your case was so finely balanced, I did adjourn it, in order to test further your commitment to your rehabilitation. On the one hand I agreed with the Prosecutor, that the offending was too serious not to attract further imprisonment, however, your rehabilitation and your distancing of yourself from the people you offended with was so exceptional, as to warrant further time.
58 I formed the view that if you could demonstrate this rehabilitation over distance and time that it would not be in the interests of the protection of the community to return you to custody where you would no doubt reunite with the peers and lifestyle that you (with the support of an exceptionally determined family ) had worked so hard to reject.
59
On 1 March 2020 I again heard evidence from your grandfather,
Mr Smith, and received a further supervised bail progress report, authored by Ms LoGiusto. It was very clear from this evidence that you have now demonstrated your commitment to your rehabilitation over time. You continue to work in the construction industry six days per week. You continue to assist your family in the home in Port Melbourne, where you are apparently welcome indefinitely. You are now working to save money to buy your own home which you hope to be nearby to your grandfather
Youth
60 You are 20 years old. The community has a long-term stake in both your recovery and you ceasing to offend. Your youth means that the paramount role for this sentence is to support your rehabilitation; while your offending was very serious I do not find that it is such that it displaces this principle. Your youth also means you are less mature and have less capacity to properly appreciate the harm caused by your behaviour and to imagine the effect that it has on others – your neighbourhood, your family and yourself.
61
After the hearing on 1 March 2021, the Prosecution submission in favour of further imprisonment was reviewed, and not maintained. A further submission on this subject was received, at the Court’s invitation, on
10 March 2021. That email has now become Exhibit 2. In it the Prosecutor conceded that a “lengthy and onerous” Community Corrections Order would be within range, in addition to the time already served.
Relevant sentencing principles
62 I am obliged to sentence you in a way that deters other people from behaving in similar ways. Moreover, you must be punished for what you did. I have considered the roles for specific deterrence, that is the need to stop you from committing similar offences again. In the context of your demonstrated and relatively long-term rehabilitation I see that that role is significantly reduced. Through me and this sentence the community denounces your offending behaviour.
63 I have had regard to current sentencing practices in this area. No case is exactly like yours, but I must sentence in this landscape. What you have been able to achieve since being granted youth bail is exceptional. It is in the interests of the community to not disrupt that progress. It is with the safety of the community firmly in mind that I have decided not to impose a further term of incarceration or detention in a youth justice facility.
64 Given the evidence before me and given that your co-offenders (or other youths in similar position to your co-offenders) are likely to be in such facilities I have determined that it is not in the community’s interests that you be re-exposed to that environment, in circumstances when you have worked so hard to detach yourself from these influences and habits.
65 Arriving at an appropriate sentence has not been easy in this case. But the Court said in Boulton at paragraph 131: [3]
[3] Boulton v The Queen (2014) 46 VR 308, 131
'Even in cases of relatively serious offences — which would previously
have attracted a medium term of imprisonment (such as, for example,
aggravated burglary, intentionally causing serious injury, some forms of
sexual offences involving minors, some kinds of rape and, in some rare
and exceptional circumstances, homicide) — the sentencing court may
find that a properly-conditioned CCO of lengthy duration is capable of
satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.’
Other submissions on sentence
COVID-19
66
I take into account the current circumstances surrounding the COVID-19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports. You spent
30 days in adult custody between April – May 2020; this would have been a particularly harsh, and I hope, salutary experience for you.
67 In this case, my attention was drawn to the fact that aggravated home invasion carries a mandatory non-parole period of three years imprisonment, pursuant to section 10AC of the Sentencing Act 1991. It was the position of the Prosecution in this case that this section is not applicable to attempted offences. If you had been successful in gaining entry into the property, and you came very, very close, you would be serving a minimum of three years in custody, and there is nothing that I, or your grandfather, or anybody else, could do about it. You got very close to effecting that entry. You need to reflect on that.
68 I have considered the requirement pursuant to section 16(3C) of the Sentencing Act 1991 that sentences imposed for your offending, committed as it was while on bail for other offending, must be served cumulatively unless I direct otherwise.
Disposition:
On Charge 1: affray and Charge 3: intentionally damaging property, you are convicted and sentenced to a CCO of 36 months duration.
On Charge 2: attempted aggravated home invasion, you are convicted and sentenced to 30 days imprisonment and in addition a CCO of 3 years duration.
On the related summary offence of committing an indictable offence whilst on bail you are convicted and fined a sum of $1000.
Pursuant to s.40 of the Sentencing Act 1991, I make one Community Corrections Order in respect of each of the offences identified as carrying that sentence.
The total effective sentence on this indictment is therefore 30 days imprisonment and a Community Corrections Order of 36 months duration, with the addition of a fine of $1000 for the summary offence.
I have given careful consideration to imposing work hours as part of the CCO and decided not to do so. Normally, this would be part of the punitive component of such an order. My reasons for not ordering that are that at the moment community work has the form of supervised knitting. I mean no criticism of the authorities for that solution, these are difficult times, but I am also aware that you are engaged in employment 5-6 days per week for very long hours, and this position is protective of your rehabilitation. I have formed the view that an order for unpaid community work in all the circumstances has real potential to be counterproductive.
I am now going to read you the conditions of the Community Corrections Order, which will be for a duration of 36 months. Once I have read through these conditions I will be asking your barrister to convey your consent, if you do so.
You will be first subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during that 36-month period.
Let be clear about this: if you do reoffend, at any stage in the next 3 years, you will be brought back to court before me and I will be here and you will be resentenced for these offences; absent extraordinary reasons, you should expect that that will involve your imprisonment. It would be adult gaol, as you would no longer qualify for youth detention.
You must report to the Melbourne Justice Service Centre Corrections Service within two days of today by telephone.
You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.
It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their prior permission. This is for the entire 36 months.
Special conditions
You will be required to submit to assessment and, if assessed as appropriate, for treatment for drug use and alcohol use and to complete any programs to address those problems if directed.
You must submit to supervision as directed.
I am aware that the Office of Corrections will work with you to preserve and continue your current employment situation.
I will also require you to participate in judicial monitoring. That means you have to come back to court. I state that you can attend by video should you choose to do so, in three months' time to confirm with me how the order is progressing. I will get an update from the Corrections staff at that time.
Pre-sentence detention
Pursuant to section 18 of the Sentencing Act 1991, I declare that you have served
30 days pre-sentence detention.
s6AAA reduction
Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have sentenced you to a period of two and a half years in a youth detention facility if eligible.
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