Director of Public Prosecutions v Okey
[2019] VCC 2272
•18 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-19-00936
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN OKEY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2019 | |
DATE OF SENTENCE: | 18 September 2019 | |
CASE MAY BE CITED AS: | DPP v Okey | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2272 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary and common assault – early plea of guilty – time served to be followed by a 21 month Community Correction Order ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr W Toohey | Cameron Marshall and Associates |
HER HONOUR:
1 John Okey, you have pleaded guilty before me to one charge of aggravated burglary and one charge of common assault. The charges arise out of an incident that occurred on 29 November 2018 at Maidstone. The charges are serious, and that is reflected in the maximum penalties prescribed by law, which is 25 years’ imprisonment in respect to aggravated burglary and 5 years’ imprisonment for common assault.
2 In addition, you have admitted your prior criminal history. That history spans a period from 2001 up to July 2018 in respect to offending in Western Australia. There is also one matter that has been previously dealt with in the Magistrates’ Court on 20 November 2018 where you received an aggregate sentence of imprisonment of seven days for theft and commit indictable offence on bail.
3 Your prior criminal history is predominantly in relation to dishonesty offences, driving offences, some drug-related offending and breach of bail. You have a prior for robbery whilst armed on 22 July 2005, and burglary and commit offence aggravated (habitat) on 6 September 2005, and assault common on 21 September 2005, aggravated burglary and commit offence in dwelling on 13 July 2009, multiple stealing charges and burglary in respect to some matters that were heard at the Mandurah Magistrates’ Court in Western Australia on 27 April 2018. You have served jail terms in Western Australia in 2005, 2009 and 2015.
4 You came to Victoria for a fresh start in 2018.
5 You were 34 at the time of the offending, and you are now 35.
6 I shall proceed to sentence you on the basis of the Prosecution Opening which was read at the plea hearing. Those facts were admitted.
7 The victim, Rebecca Wiffen, is 21 years of age. She is a person who was not known to you.
8 Ms Wiffen was at home in Maidstone on Thursday, 29 November 2018, together with her three children aged four, three and seven months, as well as a friend, Mark Manser, and a painter, Rami Ayoub, who was working in the bathroom.
9 At about 2.30pm, she heard you call out “Hello”. She thought it may have been a tradesperson and went outside with her seven month old baby. She thought that you looked drug-affected and she could smell alcohol. You told her that you wanted to come into the house for a coffee as it was your nan’s house.
10 She told you that she did not drink coffee and that she had her children with her. She backed up the stairs and said “Maybe some other time”. You then said “No. Let me in or it can either be good or bad”. She then gave her young son to her friend, Mr Manser, who took him into a room at the back of the house. As he did so, Mr Manser told the painter to help Ms Wiffen. Mr Manser called the police and stayed with the children at the rear of the house.
11 Ms Wiffen remained at the front door, at which time you told her that if she did not let you in, you were going to drown her in the bathtub. She was feeling anxious and worried and pushed you back, so that she could close the door. You came back towards her and pushed her into a cabinet behind the front door. The back of her head and neck hit the edge of the cabinet. You were then standing just inside the front door. She tried to push you out of the doorway, but you pushed her into the wall, and then pushed her once again, this time into the doorframe of the spare room. You punched her to the face and she fell to the floor.
12 You then slammed the front door and called out “Nobody’s leaving coz it’s my house”.
13 The painter, Mr Ayoub, came into the living room. He noticed Ms Wiffen kneeling on the floor and she was very upset. You were walking around the living room waving your arms about. You were very angry, saying “Why did you break the house?”.
14 Mr Ayoub walked up to you and told you to calm down, and said to you that he would fix what was broken, and then offered to take you out for a coffee. You said that you would not go out without Ms Wiffen. You then said that she was your sister, and Mr Ayoub recalled that you referred to Ms Wiffen as “my wife”.
15 Ms Wiffen was still on her knees. You told Mr Ayoub to kick her, or that you would. He again encouraged you to go out for a cup of coffee, but you said “No. I want coffee from her”.
16 To get Ms Wiffen away, Mr Ayoub told her to go and get some coffee. She went down the hallway and spoke with Mr Manser. She again requested that the police be called. He told her that he had already done that. She then returned to the living room.
17 You told Mr Ayoub that you wanted to speak with Ms Wiffen, and you told her to sit next to you on the floor, which she did. She tried to keep you calm until police arrived.
18 At one stage, you told Mr Ayoub not to leave the house, but he told you that he needed to get some tools. He went to the car and returned to the house. When he returned, he left the front door slightly ajar. A few minutes later, police arrived and questioned you about what was going on.
19 You were saying something about having the wrong address and the family tree. You were directed outside and you complied with police directions. You were rambling on about the house being your grandmother’s. You did not provide your name when asked. You took your shirt off and were yelling at police. You appeared drug-affected.
20 You were arrested and taken to the police station. Following an assessment by a forensic medical officer, you were deemed unfit for interview.
21 As a result of the offending, Ms Wiffen suffered some soreness to the top of her spine and headache with some small scratches on her neck. The side of her face was slightly red and sore. She has not provided a Victim Impact Statement.
22 However, having regard to your aggressive behaviour and the assault, I consider that she would have been very frightened by your actions, and your actions must be condemned.
23 Ms Wiffen told police in her statement that on 29 November 2018 she felt scared and did not know what you were going to do.
24 The offence of aggravated burglary does represent a broad spectrum of conduct. In the circumstances of your case, where there was no damage done to enforce entry and your actions appeared to be spontaneous, I consider that this is at the lower end of the scale of seriousness of such offending.
25 Your actions in assaulting Ms Wiffen must be condemned. It was an unprovoked assault and one that was not warranted in all the circumstances.
26 Your bizarre behaviour is perplexing. You have been unable to recall why it is that you did what you did. When you were taken into custody following these offences, you were seen by a psychologist with the Mental Health Response Service at Melbourne Magistrates’ Court. It was noted that you had moved to Melbourne from Western Australia around six months earlier with a pregnant girlfriend. You were currently living at a friend’s house and you were seeking more secure accommodation with your girlfriend. You were observed by your legal representative to be presenting as manic and erratic. You had not received any mental health assessment and/or treatment from a Victorian mental health service and you denied having any such contact.
27 You told the psychologist that you had been released from MAP two days previously and had attended the Alfred Hospital with your pregnant girlfriend for medical monitoring. Upon leaving, you attempted to fill an Insulin prescription for her, but thereafter lost contact with her. You became distressed and worried about your girlfriend. You thought that you had been struck to the head that night from an unidentified person. You awoke on the ground. You attended the Royal Melbourne Hospital for treatment but left before receiving a brain scan because you were worried about your girlfriend and wanted to go and search for her. This was the context that led to you being found at Ms Wiffen’s property, not knowing what you were doing. You did not intend to rob or assault her.
28 The psychologist noted that your speech was at times incoherent and you seemed somewhat disoriented. However, you could provide a clear version of events in the lead up to the arrest. The psychologist recommended further review to investigate alleged head trauma, which may have contributed to your offending and current disorientation. It was also suggested that you be given assistance to help find your girlfriend.
29 Eventually, a CT scan was performed at St Vincent’s Hospital Emergency Department that was reported as being normal on 2 December 2018. The formal diagnosis was “impression of concussion”.
30 When earlier assessed by the Royal Melbourne Hospital on 29 November 2018, it was noted that you were a poor historian. Your blood alcohol reading was nil. You were orientated to place and the impression was that you were drug-affected. You left prior to a CT scan being performed.
31 Having considered the conduct taken together with the observations made by the witnesses and the police at the time of arrest, and then the medical attendants just before and subsequent to your arrest, I consider that you were clearly acting in a manner that was likely to have been related to taking drugs, and that you were disoriented and confused. The context to the offending provides a very real explanation for this otherwise bizarre behaviour. Notwithstanding that, you did know that what you were doing was wrong.
32 Given those circumstances, I consider that your moral culpability was not high and that the need to emphasise general and specific deterrence in these circumstances can be moderated to a degree.
33 I have had regard to the matters put in mitigation on your behalf by Mr Toohey. You entered a plea of guilty at the earliest available opportunity at committal mention on 15 May 2019. The matter proceeded by way of straight hand-up brief. None of the victims were required to be called to be cross-examined.
34 The plea has real utility. You have spared the State the cost of a trial and you have avoided any further trauma being cause to the victims. Your plea has facilitated justice, and your sentence will be significantly discounted.
35 I accept that the plea is evidence of genuine remorse on your behalf.
36 You have utilised your time well in prison. You have been working in the kitchen area and also undertaking some cleaning. You have undertaken many courses involving alcohol and drug minimisation.
37 In addition, you have completed numerous certificates in relation to employment prospects in the future, such as kitchen operations, digital media, general education, engineering and vocational pathways.
38 You also completed three random urine samples on 20 December 2018, 5 March 2019 and10 April 2019. All of which were negative.
39 Having regard to your prior criminal history, it is evident that you have experienced long-term issues in dealing with both alcohol and drugs, so that your current situation where you have been abstinent from drugs whilst in prison is encouraging and augurs well for the future.
40 You left school at a very young age at 14 but successfully completed a plastering apprenticeship. You have had long periods of employment in Western Australia related to plastering. You suffered a fairly serious head and back injury in 2007 following a transport accident for which you take pain relief from time to time. You have also had periods of anxiety and depression, and you have been prescribed Avanza.
41 You grew up in Western Australia. Your mother still lives there and your father lives in Victoria. You have four brothers and a sister. You have been maintaining telephone contact with your father whilst you have been held at the Fulham Prison. He lives in Greensborough together with a younger brother. Your father is employed as a ceiling plasterer.
42 There is a prospect that you may obtain work upon your eventual release in this field.
43 Your grandmother, who is in her nineties, lives in the country but does have a home in Greensborough that is said to be available for you to live in upon your release.
44 You have not had any visits whilst in jail, but you have been in regular contact with your father, aunties and uncles.
45 Dr Leon Turnbull, forensic psychiatrist, assessed you on 14 March 2019. His recommendation is that you need to engage with work and try to prevent any relapse into drug and alcohol use. He did not consider that you have a mental illness.
46 In order to facilitate your ongoing rehabilitation, it will be necessary for you to address your alcohol and drug issues.
47 Mr Toohey submitted that a Community Correction Order ought be considered so that you can be supervised upon your eventual release. Alternatively, he submitted that a term of imprisonment was also an option, and recommended that you be released with parole.
48 Mr Pickering, the prosecutor conceded that this was a rather odd situation. Having regard to the nature of the offending he conceded that it was not typical of the sort of offending that is represented in aggravated burglaries. A more serious aspect of the offending was however the commission of the assault upon Ms Wiffen. He sought the imposition of a term of imprisonment with a non-parole period being fixed. He conceded that you have reasonable prospects of rehabilitation having regard to your conduct whilst in custody.
49 In formulating a just sentence I must balance all of the sentencing principles and only impose a term of imprisonment as a last resort.
50 I have had regard to the guideline judgment of Boulton v The Queen[1], known as Boulton, and acknowledge that the availability of Community Correction Orders has dramatically changed the sentencing landscape in this state.
[1][2014] VSCA 342 [186].
51 In this instance I consider that time served to be followed by a Community Correction Order is the most appropriate sentencing disposition. It will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence.
52 I consider that to imprison you further would be a retrograde step and would undo potentially all the steps that you have taken to date to address your underlying offending behaviour.
53 I have also had regard to what was said in Boulton, where it was said:
"A Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment."
54 Those observations are particularly relevant in this case.
55 The court in that case went on to say:
"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects of rehabilitation."
56 I am satisfied that yours is a case where all of that can be achieved through the Community Correction Order that I have formulated.
57 You have been assessed as being suitable for such an order. You are assessed as being high risk of reoffending.
58 I have explained to you the nature of the order and also the consequences of contravention, and this morning you have indicated your willingness to consent to such an order. You have responded that you fully understand all the terms of the order and consent to the order being made.
59 You have had explained to you the mandatory terms of such order.
60 You fully understand in the event that you breach the order, that constitutes a new offence and that is punishable by up to three months' imprisonment.
61 The sentence to be imposed must reflect condemnation by the court of your appalling behaviour. It is equally important that it must be of such severity to serve as a lesson to others who might be minded to engage in this sort of offending. The courts need to send the message that persons who engage in such conduct do receive stern punishment. The punishment aspect of your order is reflected in the community work component, in addition to the other programs that have been indicated.
62 I will now impose the formal sentence. Could you please stand.
63 On Charges 1 and 2 (aggravated burglary and common assault) you will be convicted and sentenced to 293 days to be followed by a twelve month Community Correction Order with the conditions of supervision, and treatment and rehabilitation programs for drug and alcohol, as well as programs to reduce offending behaviour.
64 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of 2 years to serve 9 months.
65 Finally I make the order pursuant to s464ZF for the taking of a forensic sample. I note the order was not opposed. I consider that such order is in the interests of the community.
66 What that means is that at some stage, you will be asked to provide a forensic sample at a police station. You will be given a cotton bud to rub the inside of your mouth to obtain a saliva sample. Provided you do that you will comply with the order. If you do not comply, then the forensic sample can be taken by way of a blood test and reasonable force can be used to effect that.
67 Do you understand the s.464ZF Order?
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