Director of Public Prosecutions v Osborne and Lindsey
[2021] VCC 1597
•20 October 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00811 & CR-21-01172
Indictment No. C2114256
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONNOR JAMES LINDSEY and MARC JAMES OSBORNE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2021 | |
DATE OF SENTENCE: | 20 October 2021 | |
CASE MAY BE CITED AS: | DPP v Osborne and Lindsey | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1597 | |
REASONS FOR SENTENCE
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Catchwords: Home invasion and criminal damage - Intent to damage property - No-one present - Early guilty plea – COVID-19 - Parity - Bugmy
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Buckland | Office of Public Prosecutions |
| For the Accused | Mr J Irwin for Lindsey Mr A Paull for Osborne | Cinque Oakley Lawyers Adrian Paull Lawyers |
HIS HONOUR:
1 Connor James Lindsey and Marc James Osborne, you have each pleaded guilty to one charge of home invasion and one charge of criminal damage.
2 You have each admitted a criminal history. Your criminal history is a lengthy one Mr Osborne. Yours a relatively short one Mr Lindsey.
3 You are 23 years of age Mr Lindsey and you, Mr Osborne, are 38 years old.
4 The summary correctly sets out the correct maximum penalties here.
Facts
5 Mr Buckland appeared to prosecute at the plea conducted on Monday of this week (18 October) and relied upon a short written amended summary of prosecution opening dated 15 October 2021. Your counsel both told me that it was an agreed statement. It was marked as Exhibit A on the plea. I see no need then to set out the full sentencing facts in these my reasons. I will sentence pursuant to that agreed summary. I should say there were aspects within Mr Irwin’s written submissions that addressed some of the factual matters. He really was not relying on those things, for instance the contention that the door was not forced, or the suggestion of the damage perhaps not being as bad as was referred to, or the location of the weapons. See paragraphs [35], [37], [38]. As I say, the summary was an agreed one and Mr Irwin was not suggesting that you, Mr Lindsey, were in the best position to recall the details.
6 Very briefly then, you Mr Lindsey, had been involved in a physical altercation with the victim at the Sebastopol Bowls Club. This was on the late afternoon or early evening of Saturday 12 December 2020. The victim, who describes being goaded or provoked by you, then punched you a number of times in this altercation, before being separated by other persons. Plainly, he should not have done what he did. I note that a witness to the later home invasion, described one of the men having a gash above the eye. I Infer that was you, Mr Lindsey. I was told though that you did not need medical treatment. You chose not to report the matter to the police, which was your right. Regrettably though, and you sit where you sit because of this, you took alternative measures and plainly you should not have. Following the altercation at the bowls club, the victim returned to his home for a very short period before leaving and locking the house at about 6 pm. At approximately 7:40 pm, the two of you attended at the victim’s address at 133B Yarrowee Street in Sebastopol. You had between you a crowbar, a machete and a small flick knife. The front door to the property was forced and you both entered. That constitutes the home invasion. Once inside, you then used the machete, crowbar and the knife to damage the walls, cupboards and shower screen of the house. The house was entirely ransacked, with the fridge, television, and bedroom suite being upturned and other items being damaged. There are photographs within the depositions showing the state of the property after you had left.
7 The two of you were arrested shortly after the incident and each of you made no comment interviews at the Ballarat police station, as was your right. So much then for my short summary of the summary. I will sentence pursuant to the more detailed agreed statement which, as I say, was marked as Exhibit A.
8 You have both been in custody though for varying periods, which will be reflected in the pre-sentence detention declaration which I must make in each case.
Impact
9 There is no impact statement here, but it is obvious that the crimes have had immediate impact, in that this man’s home has been violated and then ransacked. Much of his property was damaged, as we know.
In Mitigation
10 Each of your counsel conducted a plea on your behalf and each relied upon a written outline.
11 Each placed before me some details of your respective personal background, including your educational, relationship and employment history. Each made some submissions as to the relative gravity of the offending and each made submissions as to your respective prospects of rehabilitation.
12 In your case Mr Lindsey, there were some positive employment references, a mental health care plan and a positive letter from Ballarat Community Health organisation. In your case Mr Osborne, I was presented with a report from a psychologist, as well as some prisoner movement documents.
13 Mr Irwin, for you Mr Lindsey, relied upon the following matters in mitigation:
· your early guilty plea in the midst of the global pandemic;
· The presence of remorse;
· Your relative youth and limited criminal history;
· Your disadvantaged background (Bugmy[1]);
· The impacts of COVID-19 upon your custodial experience.
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
14 He had in his written submissions, been arguing for a community corrections order, arguing that such an outcome fell within the available range of sentences. In his oral presentation of the plea, he correctly recognised the difficulties with that submission, given that the home invasion is what is described in the Sentencing Act as a Category 2 offence. Whilst there is no burden on an accused to establish an exception under s5(2H) of the Sentencing Act 1991[2], Mr Irwin accepted that none of those exceptions applied here. I agree and will not refer to those matters again.
[2]Farhan Fariah v The Queen [2021] VSCA 213
15 He conceded the inevitability of a prison sentence, but argued that it should be kept to the minimum period required. Well, a court must never exceed that which is necessary to achieve the purposes of sentencing. That is very much a cardinal rule of sentencing.
16 In your case Mr Osborne, Mr Paull relied upon the following matters;
· your early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· Your disadvantaged background (Bugmy);
· The application of some of the principles from the case of Verdins[3]
[3]R v Verdins [2007] VSCA 102
· The application of the principle of parity of sentence;
· The impacts of COVID-19 upon your custodial experience.
17 He also submitted that none of the exceptions within s5(2H) of the Sentencing Act applied in your case and he conceded the inevitability of a head sentence and one of a dimension requiring the fixing of a non-parole period.
Prosecution
18
Mr Buckland, on behalf of the Director of Public Prosecutions, had prepared some written submissions which were marked as part of Exhibit A. I see no need to repeat those matters. Many of those submissions were entirely uncontroversial. He queried the adequacy of the report provided by
Mr MacKinnon and challenged the existence of any causal link on the materials placed before the court. I should say, I had on the plea, expressed some pretty strong views as to the adequacy of that report. I will say a bit more about that later in these reasons.
19 The prosecution ultimately was calling for a prison term here but so much had been readily conceded by each of your own counsel.
Background
20 I turn now to the background of each of you. I am not going to descend into the fine detail of either of your backgrounds. I have no reason to doubt the details of your personal and family backgrounds. Those details have been placed before me and I have no difficulty in concluding that the Bugmy submission is made good in each case. You each have had unenviable backgrounds. As I say, there is no need for me to set it all out. There has been much disadvantage, exposure to alcohol and drugs and/or violence, fragmented schooling and really the absence of positive role models and the absence of appropriate stability and guidance in your developmental years, the sorts of things which are taken as a given for so many in the community who are lucky enough to have those things. Well you did not. You have both been dealt pretty poor hands actually. These things do not diminish over time. They leave a mark and time actually does not remove that mark. Those backgrounds explain a lot about the faltering trajectories of your lives. I take into account the backgrounds insofar as I am able to. I give them full weight. As part of that recognition then, there is some reduction in culpability here. Of course, those backgrounds do not just evaporate after this hearing, they remain with you and they will be difficult to rise above in the future. These Bugmy principles do not just all go in one favourable direction.
21 Quite unsurprisingly then, each of you have had serious issues with substance abuse. You have been trying to conquer that Mr Lindsey, and have been doing well, as the letter from Ballarat Community Health makes clear. You also have been a good worker and had a job to go to, as the most recently filed letter made clear. So there are some good references placed before the court for you. When in a stable setting, you have also worked well enough, Mr Osborne. Stability though has been very elusive for you over the years. Stable accommodation has been a major problem for many years. Abstinence from drugs, likewise. I was told by your counsel that you have been caught up in a cycle of unstable accommodation, drug use, offending, being imprisoned, being released with little structure and then winding up back in prison.
Criminal history
22 You each have a criminal history and I turn to that briefly. You have a relatively brief criminal history Mr Lindsey, one that really does not inform my task at all. You are also still a young man. You have only one adult court appearance and you have never been incarcerated or even placed onto a community corrections order. There have been a handful of Children Court orders with dispositions, including probation. Well I was told about the details of those various matters set out in the criminal history and they really assume no importance at all in my sentencing task. In fact, given your disadvantaged personal background that I have spoken of, the absence of a more serious criminal history in the circumstances is actually far more instructive.
23 You, on the other hand Mr Osborne, as you know, have a very lengthy and obviously relevant criminal history, one that plainly does inform my task. I am not going to set it all out in these reasons. There is no point in my doing that. The history speaks for itself. You have been given very many chances. You have not taken them. You have been sent to prison on a number of occasions for a large range of offences committed over the years. You have breached many court orders. It must be said that the home invasion represents a sizeable escalation.
24
Having mentioned each of your criminal histories, I want both of you to understand what I actually said on the plea to each of you: that you do not fall to be sentenced a second time by me, for any of that past offending. You have served the sentences which were imposed. I do though have to make judgements as to your prospects of rehabilitation and the need to deter you and protect the community from you. Those prospects are far less rosy in your case, Mr Osborne, as I am sure you will understand. You are much older and with a bad track record before the courts. The need for specific deterrence and community protection is clear in your case,
Mr Osborne.
25 Though you were the instigator of the offending Mr Lindsey, you are far younger and with a far less serious track record before the courts. Your prospects are nowhere near as dim as Mr Osborne’s. Though you were the instigator, at least one can understand your motivation. That is not to say it excuses your conduct, it plainly does not. But you had anger at being assaulted. It does not in any way justify your conduct, but it does explain why you have acted seemingly in the moment and out of character. As for you Mr Osborne, your rationale for becoming involved is something of a mystery. You had none of the emotional drive or passion of the moment which motivated Mr Lindsey to act as he did.
26 I turn then to consider the other matters raised by your respective counsel.
Guilty plea
27 The first of those matters was in each case, your respective early guilty plea. They were each entered at what I will treat as the earliest stage and as a result, there have been considerable savings. You have both taken early responsibility for your offending. As a result, the time, the cost and the effort of a committal hearing in the Magistrates' Court, or a trial up in this court has been completely averted. Witnesses, including your victim, have been spared the experience of giving evidence in a court. These are all significant matters.
28 You have both facilitated the course of justice. You must be rewarded for that. Your guilty plea is in each case worthy of extra weight for the many reasons set out in the decision of Worboyes.[4] There is a mountainous backlog of cases waiting for a hearing in this court. Well these cases are not part of that backlog.
[4]Worboyes v The Queen [2021] VSCA 169
29 I take these various matters into account in mitigation.
Remorse
30 Given your early guilty plea, in each case, I am prepared to find that it evidences some remorse in each case. So I take the existence of remorse into account in your favour.
Rehabilitation
31 I turn now to your prospects of rehabilitation. As I have already mentioned, here, there are some very sizeable differences as between the two of you. You still have youth on your side, Mr Lindsey, and I take into account the cases such as Mills[5] and Azzopardi[6], which spell out the importance of youth in the sentencing exercise. I adapt them to one of your age. Though not some youthful first offender or some silly teenager, you are still young enough and your history is not too long at all, with only that one adult court appearance and no history of even being placed onto a community corrections order. There is nothing at all in that history, which suggests to me the existence of some intractable antisocial tendencies. You had been working to deal with your drug issues and have been employed with some decent reports on that score. I believe that you have quite reasonable prospects of rehabilitation. They would rise quite materially if you can abstain from illegal drug use. You were also relatively young and acting in the heat of the moment, having been assaulted. Well youthful people are renowned for not thinking through the consequences of their actions. They are generally less culpable and generally speaking, there is a greater regard given to rehabilitation and less weight given to punishment and deterrence. Young people are also more amenable to change. So I believe you do have quite reasonable prospects, with the right encouragement and structure and with abstinence from drugs. If you can abstain from drugs and those prospects will I think rise very significantly.
[5]R v Mills [1998] 4 VR 235
[6]Azzopardi v The Queen [2011] VSCA 372
32 Your prospects on the other hand, are not at all good, Mr Osborne. Your counsel couched his submissions by urging me not to find that they were extinguished altogether. Well I am prepared to accept that submission, but that does not get you too far. You have been before the courts on countless occasions. You have been given many chances by the courts and you have not taken them. You have breached many court orders. You have been sent to prison often enough. You get out and then you just reoffend and you are no longer a youthful offender. You are now 38 and with long term issues with drugs. For you to have any chance, you need to abstain from illegal drugs and that has been beyond you for many years. One would hope that this sentence will serve to deter you to a degree, but past sentences obviously have not. Your counsel, in his submissions, submitted that you have been before the courts every year since 2008. The fact is, you have been troubling the courts for over twenty years. Prison has not deterred you. You have virtually nothing by way of support or structure in the community. You are quite isolated. Disturbingly so. It is a bit sad actually. Your counsel accepts that your rehabilitative prospects are not strong. He argued that the court really could only be guarded. In fact ultimately, I believe those prospects of rehabilitation are really quite poor.
COVID-19
33 In each case, I accept the submissions made as to the impact of COVID-19 restrictions on the custodial experience. Obviously, the weight varies as between the two of you, as you Mr Osborne, have been in custody for a sizeable enough period already, whereas you, have spent only a handful of days to this point, Mr Lindsey.
34 Your counsel, Mr Osborne, relied upon the impact of the COVID-19 pandemic upon your experience in custody to date. I accept his submissions in that regard.
35 I do accept that the COVID-19 virus and the response to it by those running the prisons, has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point. You, Mr Osborne, have been in custody for over 300 days, not all referrable to this matter. Social distancing has not been easy. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is just no level of autonomy at all. There have been some lockdowns and you have also experienced the burden of quarantine.
36 You have had limitations to visiting and courses and programs in the period in which you have been held. The limitations upon visiting have not been an issue in your case, as you really have no-one to visit you. That is a sad state of affairs to consider.
37 The fact is though, it has not been a good time to be locked up and I take that into account in your case, Mr Osborne.
38
What lies ahead for each for you in the future though is anyone’s guess. In each case, I do take into account that it seems likely that these restrictions will continue into the future, at least in the short term. That would also, I am sure, produce worry and uncertainty and some limitations. I cannot speculate about how long restrictions on prisoner visits will be employed into the future. We are starting to open up in the community, owing to the increased vaccination rate and presumably the restrictions in a prison setting will lift in due course. I cannot say when that will happen, but those administering prisons (Corrections) can make judgments themselves as to the extent to which these things need to be addressed by emergency management days in each case. I cannot take that sort of thing into account. Following my remand of you, you are now in quarantine
Mr Lindsey and deprived of any in person visits and that is a very hard start for what is your first experience of prison life. So I do take into account the impact of COVID-19 upon your experiences in each case.
Verdins: Osborne
39
In your case Mr Osborne, your counsel relied upon the report of
Mr MacKinnon, in support of really what was the modest application of a number of principles from the well-known case of Verdins. (1, 3 and 4). I am actually meant to apply some rigour to this process. I am sitting as a Judge, passing sentence.
40 I note in the case of Brown[7], the Court of Appeal having dealt with the need for sentencing Judges to apply rigour to their task, said the following:
'The need for rigour applies with equal force of course to those legal representatives who commission and those clinical experts who prepare reports to be used at sentencing hearings. Both the judge and Professor Ogloff lamented the deficiencies of many such reports. His Honour spoke of the 'proliferation of rather deficient psychological reports in this court'. For his part, Professor Ogloff said that while some reports were ‘fantastic and fine’, some were ‘absolutely shocking’.[8]
[7]Brown v The Queen [2020] VSCA 212
[8] Ibid at paragraphs [63] and [64]
41 I regret to say this is yet another example of a quite unsatisfactory report, prepared by a consultant forensic psychologist and relied upon in this court. Your counsel recognises that there are real limitations in the report and in the submissions founded upon it.
42 Mr MacKinnon saw you by video link a few weeks back. So that is the starting point: a single video link attendance upon you 10 months or so after the offence date, and with no material presented to him documenting any previous treatment for, or diagnosis of any mental health condition at all. He then acts on your self-report. He concluded that when he saw you in October of this year, you were suffering from symptoms that then met the clinical criteria for the two conditions he mentioned, mixed anxiety and depression disorder (MADD) and polysubstance abuse disorder (PSAD). He concludes on your self-report that you have suffered with these conditions on a longstanding basis.
43 He describes you as posing a heightened risk of angry violent and/or threatening behaviour when under the influence of illicit substances (see paragraph [7] (p2)). He received from you, an account of daily abuse of drugs at the time of the offending (see p4). A pertinent question for him to ask then is, ‘what state you were in when you committed the offences?’. There is nothing unusual about drug use disinhibiting an offender and seldom is it mitigatory.
44 He concludes that the two conditions likely existed at the time of the offending. That you have had in the past, and had at the time of the offending, the anxiety and depressive disorder and the drug disorder. Well they are just the labels. The diagnostic label does not determine the application of the Verdins principles. He concludes that your chronic mixed anxiety and depression disorder and associated polysubstance abuse disorder, made a significant contribution to the offending by degrading your ability to reason and make sound judgment, eroding your sense of personal responsibility and making you more impulsive and prone to chaotic angry and reckless behaviour. So, he reaches this view as to this causal connection.
45 He does not provide in the report any account from you as to why you actually were involved in the offending or how you came to be involved. Nothing about the lead in or the offending. Not one word. Either you were not asked, which surely would be bizarre, or you were and he chooses, for whatever reason, not to place into the report your account. Either way, it is entirely unsatisfactory. Were you significantly affected by drugs on this day? Well your counsel, acting on your instructions, submits that you were not. However, there is no account of this offending from you at all, either to the police or in the consultation with Mr MacKinnon, other than you saying to MacKinnon, that you were using drugs habitually as at the time of the offences, typically using .5 grams of ice and methadone on a daily basis. As to the opinion of the substantial contribution arising from this mixed anxiety and depression disorder, well a decent starting point would be to ask you why you committed the offence and what state you were in. To ask you, for your account, to try to understand the motivation and the possible causes or combination of causes, but the report is silent.
46 The contribution of the condition attracting Verdins relied upon here, that is the mixed anxiety and depression disorder is speculative when regard is had to the other factors in play, for instance, disinhibition brought about by drug use or the drug use disorder which Mr MacKinnon also says contributes to erode your capacities. So, which has a greater role in terms of impacting upon your capacity for sound judgment? Who knows? He does not say. No doubt, it is impossible to untangle for him and for me.
47 I do not accept that there is any basis to significantly reduce your culpability on a Verdins basis. I have already made some allowance on a Bugmy basis. I will make only some very modest Verdin’s limb one allowance. Nor should there be any significant reduction in the weight given to specific and general deterrence. You can and you must be deterred. You knew exactly what you were doing. You knew that your offending involved serious criminal conduct. The role of the mixed anxiety and depression disorder is pretty speculative and likely tangled up with other non Verdins contributions. Your condition, such as it is, in no way obscured those capacities. You are still an appropriate vehicle for almost the full weight to be given to general deterrence. So too, specific deterrence.
48 I do not accept that the Verdins considerations are weighty here. Nor incidentally, was your counsel suggesting that they were. I have considered whether I should make any allowance at all given some of the unsatisfactory aspects of this report and my concerns as to the claimed causal connection and the interplay between a number of factors. Ultimately though, I will make the allowances I have spoken of, but it is pretty minimal. Though I am critical of this report, I say justifiably so, I should say the report is still of value, in setting out your background, your reasons for offending in the past more generally and the large range of matters that need to be addressed to maximise your prospects of rehabilitation.
49 I turn then to the notion of parity of sentence.
Parity
50 I apply as I must, the principle of parity of sentence in this case. As a general proposition, and this is a gross simplification, like offenders ought receive the same or at least similar sentences. It is designed in large part, to avoid a justified sense of grievance between co-offenders. All things, however, are seldom equal and they are not here. Although you, Mr Lindsey, were the driving force behind the commission of the offence, in the sense that the earlier assault triggered this event, no one forced you to become involved Mr Osborne. It would seem, on the materials placed before me, including the submissions, that you were asked and you just joined. Your becoming involved, elevated this entry to a home invasion, as in the circumstances which applied, entry by one person, would not have constituted the offence. You do not have the emotional response which Mr Lindsey has, in explaining (though not excusing) the decision to seek revenge. You were removed from all of that.
51 As to the nature of the entry and what took place within, there is really no real or meaningful distinction between you.
52
When looking at matters personal to each of you, everything flows in
Mr Lindsey’s favour and significantly so.
53 He is in a totally different position in terms of risk of reoffence, protection of the community and the need to give weight to specific deterrence. All things are decidedly not equal here. He was 22 and with a minimal criminal history of no relevance to my task. You were 37, with a very lengthy criminal record. It is chalk and cheese. So, although I accept that absent him from the equation, you Mr Osborne, would not have been offending on this day, when I consider the position of each of you, Mr Lindsey necessarily must do far better than you by way of sentence, Mr Osborne. Your counsel accepted that this was so. I am explaining these things to you, so you will understand why you will do worse than Mr Lindsey, by way of sentence. At the end of the day, I really cannot stop you from having an unjustified sense of grievance. You will surely know that Mr Lindsey has far better prospects of rehabilitation and a significantly lower risk of reoffence, hence, there is far less weight to be deployed in relation to community protection and specific deterrence.
The Offences
54I must pay regard to the nature and gravity of the offences before the court. It is accepted that this was serious offending. Each counsel made submissions about some matters absent from this example of home invasion. That is a common enough way for a plea to be conducted in this court, but the fact is, the absence of some matters of aggravation does not reduce the seriousness of the matter before the court. It does not remove the matters that are present. I have to sentence you each for the crimes you have committed, not the crimes that might have been committed differently. These were serious enough crimes, as is conceded. It really is not mitigatory, that there are some features absent. Mr Paull referred in paragraph [1] to a number of factors, including the fact that the matter was not protracted, that it was relatively unsophisticated with only some premeditation, with no person present within the home and where there was no intention to assault or injure and all of this was not occurring in the early hours. Mr Paull made submissions about statements in a case of Hogarth[9]. That was a case dealing with confrontational aggravated burglary. I am dealing with home invasion. It is such an offence owing to your joint entry as trespassers, with the requisite intent and the carriage of the weapons. It is, as is conceded, an inherently serious offence, though I accept, it falls nowhere near the worst examples of the offence. It was not a sophisticated offence. Home invasions seldom are. You were not entering to assault people within. That sort of entry would be far worse. Well I am not dealing with that sort of entry. In fact, there were no people within the premises. Had there been, no doubt, it would have been more serious, but I am dealing with you for what you actually did.
[9]Hogarth v The Queen [2012] VSCA 302
55
Once inside the premises, you then both caused significant damage. That is a separate crime. Here, it is clear that you were intent upon revenge,
Mr Lindsey. That arose as a result of the assault at the bowls club. You took the law into your own hands and that is not mitigatory at all. It is clear that your earlier altercation with the victim drove this, your response. In that sense, you were the instigator of this escapade. It is simply puzzling that you would see fit to become involved Mr Osborne. Incredibly foolish, but the strength of numbers is why it is actually a home invasion. You do not even have the explanation of being hot under the collar or affected by emotion, as a result of the physical assault that had been suffered by
Mr Lindsey. You have nothing resembling even an excuse. You are older and with a far more significant history. Why on earth were you entering armed and intent upon causing damage? It is incredible that you did, but you did. The criminal damage was pretty nasty and sizable enough in value obviously enough. Just wanton damage. Again, you have many relevant past convictions Mr Osborne in relation to that conduct. So the home invasion was serious offending, though a mile removed from the most serious examples of home invasion for the reasons raised on the plea.
56I have mentioned your explanation for entry, Mr Lindsey, your seeking revenge. That is not greatly mitigatory. I want to make that very clear to you. Yes, you were angry. Yes you were upset. But there is almost always some emotion or feeling driving crimes such as these. Something that explains the fact of an entry as a trespasser, either as a home invader or aggravated burglar. Sometimes it is hostility or revenge or disagreement or a debt or some other aspect. Sometimes a breakdown of a relationship. There is always a motivation and it is never a matter significantly in mitigation.
Purposes
57I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. I have spoken of the differing conclusions as between the two of you. It is a far more significant purpose in your case, Mr Lindsey, though I do not ignore it in your case, Mr Osborne.
58There are other sentencing purposes which I also must give weight to. I must punish each of you and I have to do that justly and proportionately. Punishment is important.
59I must also denounce your conduct. Again, that is important.
60I must pay appropriate weight to deterrence, both general and specific. There is the need for this court to seek to deter you and others from offending in the future. There is the minimal Verdins allowance I spoke of in your case Mr Osborne.
61Specific deterrence is of importance here, in each case. It is necessarily given far more weight in your case, Mr Osborne. You have a sizeable enough risk of reoffence, in my judgment. I must try, as many judicial officers have before me, to deter you from future offending. Community protection, though of some importance in your case Mr Lindsey, I cannot just ignore it as a purpose. It is given greater weight in your case Mr Osborne, for the reasons I have just mentioned.
62General deterrence is a significant sentencing purpose in this sort of case. There is some reduction owing to your disadvantaged backgrounds and also owing to your youth, Mr Lindsey. There is the very modest reduction owing to Verdins limb three in your case as well Mr Osborne.
63But the courts must convey the message through the sentences imposed, that stern or substantial sentences will be imposed on those who choose to commit crimes such as these.
64I must have regard to the maximum penalties in play, as well as the impact of your crimes.
65I must also pay regard to current sentencing practices. That is not a single controlling factor.
66I have looked at the relevant portions of the Sentencing Advisory Council online data for examples of sentences imposed on the home invasion charge. There is no Judicial College of Victoria sentencing snapshot for this crime. The most common sentence in the period covered by the statistics fell in the range between three and four years. I have also looked at the relevant portion of the Judicial College of Victoria Sentencing Manual, dealing with sentences imposed for this crime (see 6.14.1 and 6.14.2).
67Many of the cases that I can find deal with confrontational entries, where there is an intent to assault and or steal and persons are within. Well I am dealing with what I judge to be a less serious example of the offence, given the absence of persons within and the nature of the intent specified. It is still though, an inherently serious offence to enter in company, with an intent to damage property and carrying such weapons as were carried here.
68The fact is though, other cases are not precedents and there is no such thing as one correct sentence in any event.
69Statistics have obvious and inherent limitations. It is no part of my job to sentence in accordance with what has been the most common outcome in the past.
70What I have to do is to pass appropriate sentences in each of your cases.
71I have taken into account all the submissions made both by your respective counsel and also by the prosecutor.
72Prison is a disposition of last resort, but it is plainly warranted here. That is conceded. I do not have available a combination type order, as none of the exceptions arise on the materials before me.
Totality
73 I take into account totality of sentence in each case. I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have taken a last look at the sentences imposed in each case, to guard against the imposition of a crushing outcome. I have also had regard to your being continuously in custody since arrest, Mr Osborne, including for the prison term imposed in August of this year. I take that period into account in the way urged upon me by your counsel.
Disposal
74 There is an application for a disposal order under the provisions of s78 of the Confiscations Act in relation to the various weapons. There is consent from each of you as to the making of that order. I have signed that formal order. I am satisfied the pre-conditions for making it are made out. I order pursuant to those provisions, the forfeiture to the State of that property referred to in the schedule. I direct it be handled and managed in the way contemplated by that signed order.
75 All right, look I am sorry to have taken so long to get to this endpoint. I will have you remain seated where you are, each of you, as I pass sentence. So I will pass sentence firstly upon you, Mr Lindsey.
Sentence LINDSEY
76 I believe it is open and appropriate in this case to impose an aggregate sentence in each case actually, given the relationship between the offences.
77 On Charge 1 and 2, so therefore on the charge of home invasion and the charge of criminal damage, you Mr Lindsey, are convicted and sentenced to an aggregate period of 28 months or two years four months imprisonment. That is therefore the total effective sentence.
Non-parole period
78 I am required to fix a non-parole period. I am not allowed to speculate as to whether you will be released on parole. That will be entirely in the hands of the Adult Parole Board.
79 But I take into account all the matters raised on your behalf, both in dealing with the aggregate period, but also in fixing this non-parole period. There is going to be a significant gap between the head sentence and the non-parole period.
80 I direct that you serve a period of 12 months before becoming eligible for release on parole.
81 It is six days isn't it? Is that agreed, the pre-sentence detention?
82 MR IRWIN: Yes Your Honour, I'd say so.
83 HIS HONOUR: Yes.
Section 18
84 You have spent already the period of six days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence.
Section 6AAA.
85I have also taken into account your early guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for four years. I would have fixed a non-parole period of two years and that statement is also to be entered into the records of the court.
Sentence OSBORNE
86Likewise in your case then Mr Osborne, I will have you remain seated.
87Again, as I have indicated, I believe an aggregate sentence is both open and appropriate in this case, given the relationship between the offences.
88On Charge 1 and 2, that is the charge of home invasion and the charge of criminal damage, you are convicted and sentenced to an aggregate period of three years four months imprisonment. That is therefore the total effective sentence.
Non-parole period
89In your case as well, I am required to fix a non-parole period. Again, I am not allowed to speculate as to whether you will be released on parole. That will rest in the hands of the Adult Parole Board.
90I direct that you serve a period of two years before becoming eligible for release on parole. I make it 279 days Mr Paull and Mr Cecil. Is that right?
91MR PAULL: Apologies Your Honour. To be honest Your Honour, I believe it's 278 because the count of 311 days was including 18 October.
92HIS HONOUR: Hold on. I was told the other day it was 277 days, not counting the day of the plea.
93MR PAULL: In that case it's 279, Your Honour.
94HIS HONOUR: If that was so, then it's 279 isn't it?
95MR PAULL: Yes, Your Honour.
96HIS HONOUR: Right.
97MR IRWIN: Yes.
98HIS HONOUR: Very well. All right, sorry about that Mr Osborne.
Section 18
99You have spent already then the period of 279 days in custody by way of pre-sentence detention and that period is declared as having already been served under this sentence.
Section 6AAA
100I have taken into account your early guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for five years. I would have fixed a non-parole period of three and a half years. That statement is also to be entered into the records of the court.
101I should say these sentences should not be cited back to other judges, as the sorts of sentences generally available for home invasion. They plainly are not. There are a range of mitigatory matters including the Bugmy and Worboyes allowances, as well as the nature of the specified intent here and the absence of a person within the premises. Further, there is your relative youth Mr Lindsey. In your case Mr Osborne though, the sentences imposed on Mr Lindsey, do not dictate the sentence to be imposed in your case, I am not free to ignore them. Though there are many reasons to distinguish between you, the sentence imposed on Mr Lindsey exerts something of a downward influence in my selecting the sentence in your case. Let me just see if there are any other matters then. Any other matters from your perspective Mr Irwin?
102MR IRWIN: Sorry. No, there are not sir. Thank you.
103HIS HONOUR: All right. And any from your perspective Mr Paull?
104MR PAULL: No, Your Honour.
105HIS HONOUR: Any from yours Mr Cecil?
106MR CECIL: No sir.
107HIS HONOUR: All right, so look no doubt each of your counsel will be in contact with you to discuss what has occurred here this afternoon and your rights in relation to the sentence that has been imposed upon you. Mr Irwin, you'll do that, you'll make arrangements to speak to your client in the not too distant future then?
108MR IRWIN: I'll do that as soon as I possibly can sir and for Connor who can hear, I'll make arrangements to get in touch with him if not today, then certainly tomorrow.
109HIS HONOUR: I'm just trying to think whether there's a - and likewise from your perspective Mr Paull, that'll happen in reasonably short order will it?
110MR PAULL: It will, Your Honour. I'll arrange a teleconference with Mr Osborne immediately after the sentence is concluded. That'll be in the next couple of days.
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