Director of Public Prosecutions v Pellow

[2017] VCC 1401

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00943

DIRECTOR OF PUBLIC PROSECUTIONS

v

JESSE PELLOW
TEGAN SAMPSON

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2017
DATE OF SENTENCE:	27 September 2017
CASE MAY BE CITED AS:	DPP v Pellow
MEDIUM NEUTRAL CITATION:	[2017] VCC 1401

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Phillips
For Accused Pellow	Ms A. Ellis
For Accused Sampson	Ms M. Harris

HER HONOUR:

1Jesse Pellow, you have pleaded guilty to one charge of aggravated burglary, three charges of theft and two charges of obtaining property by deception.  In addition you have consented to the uplifting of a summary charge of unlawful assault and a plea has been entered through your counsel.

2Tegan Sampson, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, one charge of possession of a drug of dependence and you have consented to the uplifting of a summary charge of resisting an emergency worker on duty and a plea has been entered through your counsel.

3The maximum penalty in relation to each of these offences is as follows:  Aggravated burglary, 25 years' imprisonment, theft, ten years' imprisonment, obtain property by deception, ten years' imprisonment, possess a drug of dependence (not for the purposes of trafficking) one year imprisonment, unlawful assault, three months' imprisonment and resisting an emergency worker on duty, six months' imprisonment.

4The circumstances of your offending are set out in the prosecution opening tendered as Exhibit 1 upon your pleas.  I direct that a copy of that opening be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.

5In essence, on 12 November 2016 you, Mr Pellow, were staying with your cousin and her boyfriend in premises in Warragul.  Over the course of that night and the following morning you located and stole credit cards and keys belonging to the victims.  You then used the keys in order to steal the victim's Holden utility motor vehicle which was valued at approximately $28,000.

6Upon discovering that the vehicle was missing, your cousin called you on your mobile telephone.  You admitted to stealing the vehicle, demanding $2000 for its return.  The money was refused and the stolen vehicle has not been recovered.  This conduct founds Charges 4 and 5 which are both charges of theft.

7Subsequently you used the stolen credit cards in order to withdraw a total of $2,115 from the victims accounts.  This conduct founds Charge 6, obtaining property by deception.

8On Tuesday 15 November, you Ms Sampson, sent a text message to an acquaintance Mr Wood, saying that you needed to borrow money.  Mr Wood replied indicating that he only had about $150.

9At 1.30 am the following morning, being 16 November, Mr Wood received a telephone call from you stating that you were at his home.  Mr Wood saw you outside and believing you were alone, opened the door.

10As he did so, you forced the door open and at the same time, you Mr Pellow, together with an unknown male and an unknown female, appeared at the front door from around the corner and you all forced your way into
Mr Wood's home.  This conduct founds Charge 1, aggravated burglary.

11As you entered the house, Mr Pellow, you punched the victim to the face as did the unknown male.  This founds the related summary offence of unlawful assault.

12Ms Sampson, you then said to Mr Wood, "We don't want any trouble.  We just want the money".  Mr Wood replied that he only had $150 and you,
Ms Sampson, told him to go and get it.

13Mr Wood then went upstairs and was followed by the unknown female who was armed with a black stick or baton.  It is agreed that you are both to be sentenced on the basis that you were unaware of this weapon.  The victim handed your co-offender the $150 in fear that he would be assaulted if he did not comply.

14Mr Wood then went back downstairs where you, Mr Pellow, were taking his mobile phone, computer, wallet and keys from the kitchen.  You demanded that he tell you the PIN numbers to his credit cards and, again in fear, he complied.

15You both, together with your unknown co-offenders, then went to the front of
Mr Wood's premises, taking the stolen items with you.  As you were all leaving, the unknown female struck Mr Wood to the forehead with the black stick or baton causing him to become dizzy and disorientated.  It is not alleged that either of you were complicit in this assault with a weapon.

16The items stolen included $150 cash, a computer, two Apple iPhones, a Samsung Galaxy mobile phone, a wallet containing various cards and a set of keys.  This theft founds Charge 2.

17You and your unknown co-offenders then entered into the black stolen utility motor vehicle, which had been stolen by you Mr Pellow, and another vehicle.

18The victim drove to the Cranbourne police station to report the offending.  He was subsequently transferred to Dandenong Hospital where he was treated for bruising and abrasions to his face and cuts to the inside of his mouth.

19Later that morning you, Mr Pellow, used the stolen credit cards to obtain a total of $2,485.16.  This conduct founds Charge 3, obtaining property by deception.  Numerous of these transactions were captured on CCTV.

20You Mr Pellow were arrested on 24 November.  Inside a vehicle which was being utilised by you, police located and seized identification and bank cards belonging to Mr Woods that had been stolen from his home on 16 November.  You were transported to the Pakenham police station where you exercised your right not to answer questions in relation to the matter.  You did however tell the police when asked that the property had come into your possession by “magic”.

21You Ms Sampson were arrested on 9 December 2016.  You too exercised your right not to answer questions in relation to the matter.  At one point during your time in custody you became agitated and began yelling at police members.  You were throwing your legs around, refusing to get up and while Constable Croxford tried to restrain you, she was kicked causing her to fall backwards.  This conduct founds the related summary offence, resisting an emergency worker on duty.

22While police members were restraining you, a small clear Ziploc bag containing approximately 1 gram of methamphetamine fell from your pocket.  This conduct founds Charge 7, possession of a drug of dependence.

23You, Mr Pellow, have been in custody since your arrest on 24 November.  You entered your plea on 12 May of this year prior to the commencement of a contested committal.

24You, Ms Sampson, were in custody from 9 December 2016 until you were granted bail on 2 February this year.  You too entered your plea prior to the contested committal on 12 May 2017.

25I have received a victim impact statement from Mr Wood.  He describes the emotional toll of being physically assaulted in his own home and the effect that it has had on him emotionally.  He is still experiencing symptoms of anxiety and hypervigilance.  He suffers insomnia and nightmares about the attack. This effect from such offending would or should have been apparent to you at the time of its commission.  You showed absolutely no regard for the victim's welfare.  We are all entitled to feel safe in our own homes and you seriously compromised the victim's rights in this regard. Mr Wood says that this offending “turned [his] life upside down and has shattered his faith in humanity.

26You, Mr Pellow, admit the contents of a criminal record dating back to 2008 at the Dandenong Children's Court.  On 15 December of that year you were, without conviction, fined $500 in relation to a charge of intentionally causing injury.

27On 13 March 2009, amongst other matters, without conviction, the matter was adjourned upon you entering an undertaking to be of good behaviour in relation to a single charge of unlawful assault.

28On 3 February 2011, you were again placed on a bond with conditions in relation to anger management and a men's behaviour change program in relation to a charge of unlawful assault and using threatening words.  I have been told that this related to you assaulting a teacher.  This was your first appearance in the Magistrates' Court at Dandenong.

29Subsequent to that, on 1 July 2015, again at the Dandenong Magistrates' Court, you were convicted of recklessly causing injury which I have been told related to a glassing at a hotel.  You were further convicted of dealing with proceeds of crime, reckless conduct endangering serious injury which I was told related to a collision with a police vehicle, together with driving, drug and what might broadly be described as street offending.

30You were sentenced to be imprisoned for an aggregate term of five months and thereafter placed on a community corrections order.

31You, Tegan Sampson, have also admitted a criminal history dating back to 2015 at the Dandenong Magistrates' Court where you were dealt with in relation to offences which included, threatening to inflict serious injury and unlawful assault.

32On that occasion, the matters were adjourned upon you to enter an undertaking to be of good behaviour with conditions in relation to treatment.

33Subsequent to that, you again appeared on 2 September 2016 at the Dandenong Magistrates' Court.  You were dealt with in relation to a large consolidation of matters including theft, criminal damage, obtain by deception, bail offences, burglary, dealing with proceeds of crime, possessing drugs of dependence and driving offences.

34On all charges, you were placed on a community correction order for a period of 18 months with a number of conditions clearly aimed at your rehabilitation.  Concerningly, as part as that consolidation you were dealt with the two charges of assaulting a police officer and one charge of assaulting an emergency worker on duty.

35This is on any view serious offending, especially as it relates to the aggravated burglary.  That offending was planned.  While it is true that the execution was not sophisticated, this would have been of little comfort to the victim.

36You entered the victim's premises in circumstances where you Ms Sampson, used your prior association to get him to open the door in full knowledge of the fact that three co-offenders were about to force their way in. It was in the early hours of the morning.  You all clearly intended to steal and you would have known, and indeed relied upon, the victim being terrified by what occurred such as he would hand over property.

37As I have said, we all have a right to live in our community and enjoy the safety and sanctuary of our homes without being subjected to this type of offending. You each pursued your own selfish agendas without any regard to the rights or welfare of the victim and members of our community.

38As regards of the earlier offending, Mr Pellow, that related to your cousin and her partner, you seriously abused the trust and it seems generosity of your cousin.  I note that the car has still not been recovered.

39I now turn to matters person to each of you.

40Jesse Pellow, you are now aged 26.  You were 25 at the date of this offending.  You were born in Hastings on 7 September 1991.  You were one of six children.  You were raised by both parents and resided with them until you were aged 17.  You have five siblings.

41Tragically two of them have committed suicide; your brother when you were 16 and your sister when you were 18.  Your mother in her correspondence indicates that you have had your own issues as regards self-harm but that is not a matter you wish pursued by way of assessment report or submission upon your plea.  I have been told that you have no current symptomology.

42I note in terms of your family relationships that you are now estranged from your father.

43As regards your education you attended various primary schools, then high school at Korumburra and then Kooweerup.  You report being expelled half way through Year 8.

44Subsequent to leaving school, you have been employed mainly as a roof tiler and then later as a concreter.  You did an apprenticeship in roof tiling completing it in approximately 2006.  You worked for a company called Bell Roofing for some five years and subsequent to that you found employment in concreting.

45You met your partner in 2011.  She now resides in Queensland with your natural and step-son.  That relationship was not without difficulty, related it seems, at least in part, to your drug abuse and your conduct. There have been a number of periods of separation including the period in which this offending occurred.  Since you were remanded your partner and children have come from Queensland to see you in custody.  Your partner expresses confidence as regards to your commitment to change and your future.

46As regards your history of drug abuse, you report using drugs from an early age, at times escalating to daily use of methamphetamine.  Your drug use was on an upwards spiral until you met your partner Ashley in 2010.  It was during the relationship that it seems you had some periods of stability before relapse.

47Upon release from Fulham Prison in late 2015, you moved to Queensland to be with your family but eventually returned to drug use.  You report that at the time of this offending, you were using methylamphetamine in a quantity of 1-3 grams a day.

48Since your arrest, you report being drug free in custody.  I have been told that you have had two random screens which have been negative.  You have clearly participated in drug rehabilitation programs.  I have received a bundle of certificates confirming that participation.

49In addition, whilst in custody, you have completed a Certificate II in Engineering, a course in release related harm reduction, a 24 hour relapse prevention program, a stress program and an emotional regulation program.

50Mr Pellow, you are still a relatively young man and the community must maintain a real interest in your rehabilitation as that is the community's best protection from offending of this type into the future.

51Tegan Sampson, you are now aged 22.  Indeed this offending occurred on your 22nd birthday.  You were born and raised in Melbourne.  You are the younger of two daughters.

52You were educated at Berwick Secondary College until Year 9 and you have been in receipt of a disability support pension since your early teens.  You report that prior to that, you were receiving a child disability pension.

53Your family clearly remain supportive of you and attended court upon your plea.  I have read the reference from your parents and sister indicating their ongoing support and their faith as regards to your future.

54You too have used drugs since your early teens.  You report being introduced to ice at age 13, initially to numb the trauma of sexual assault.

55You report your usage becoming heavy, up to a quarter of a point a day in your late teens in the context of an abusive relationship.

56You have used GHB from the age of 20, sometimes 50mls a day.  You report being an occasional user of both ecstasy and cannabis.

57Encouragingly, you report that you have had no drugs or alcohol for the past three months.  You instruct that you committed these offences while you were suffering from addiction to methamphetamine.

58Very recently on 18 September 2017, you commenced employment on a casual basis at a fish and chips shop in Endeavour Hills.  You have applied for and have been interviewed in relation to a number of other part time positions.

59Upon release, it is your hope that you return to live with your family in Berwick.  You are still a youthful offender.

60You have been seeing a psychologist, Charles Huson, since April of this year.  His report is dated 7 September.  You were referred to him by your GP for assessment and treatment at that time in relation to an ice disorder.

61Mr Huson describes your mood as elevated and at times expansive.  He says your thoughts and presentation and style of speech were indicative of a bipolar condition in a manic phase.  It is Mr Huson’s opinion is that you are of above average intelligence and he formed the view that provided you remain engaged in therapy, this will assist in your recovery.

62Mr Huson noted that you were diagnosed with ADHD at age three.  Ultimately he diagnosed you as suffering at this time from generalised anxiety disorder, major depression, post-traumatic stress disorder, which he thought was relevant to prior sexual assault, bipolar disorder and borderline personality disorder.

63Additionally he thought your former diagnosis of ADHD had ameliorated to the extent the hyperactivity component was no longer satisfied, meaning that you now satisfy diagnosis of attention deficit disorder.

64It is Mr Huson’s opinion that you have significantly impaired mental functioning.  He notes in this regard that you were diagnosed at an early age with ADHD, you were sexually assaulted at 13, you have a history of maladaptive social behaviours, and he believes the diagnoses are very closely related to the sort of life events and circumstances to which you have been exposed.

65It is Mr Huson’s opinion that your conditions are chronic and have probably been the same since your pre-school years.

66I note that the only aspect as regards to Verdins principles which is relied upon, arising from the report, is to found limb five.  That is, that you will experience your time in custody as more onerous than a person without your deficits.

67You have attended SECADA as part of your credit bail conditions and a report from that agency is Exhibit 5.  I note you have attended approximately eight counselling sessions and the author says that you have learnt to recognise the triggers for drug use, improve your coping skills, challenge negative thoughts and develop a relapse prevention plan.  Your high level of motivation was noted.

68I have also received a report from Corrections in relation to the CCO.  It is clear that you have, in recent times, fulfilled your obligations and the author says that you have continued to make positive change.  I note that there are breach proceedings outstanding in relation to this order related to earlier non-compliance and it is to your credit that you have continued to engage regardless.

69It was Mr Huson’s opinion that disinhibition has been a significant factor in your life and that your psychological diagnosis would drive you and actively prevent you from being able to think clearly and make calm, rational, reasonable decisions and appropriate judgments.

70It is Mr Huson’s opinion that you would quite significantly be at the whim of your emotional state.  It is not however put upon this plea, that those matters had a causal connection in terms of this offending for the purposes of founding Verdins.

71As regards to the treatment process, Mr Huson notes there have been several dramatic improvements in the last few months which are detailed at p.8 of his report.  He says in his view, there is every reason to trust that these will continue.  He recommends ongoing treatment in a number of domains.

72A letter from your GP confirms that you are medication compliant and actively pursuing rehabilitation.

73I have received correspondence from your parents dated 19 September this year.  They report that you have ceased all ties with your previous drug associates and you have no association with them whatsoever.  They report having seen a rapid improvement with the aid of your psychologist.

74In addition, I have the advantage of having your father give evidence upon your plea.  It is clear that your family have observed real and substantial changes consistent with your rehabilitation.  Your father described it “as getting [his] daughter back.

75I have also received a letter from your sister Alisha who reports that you have been trying very hard to change your life.  She confirms that she too is of the view that she has seen a substantial change since you were released on bail in relation to this matter.

76As I have said, I accept that you will find prison more onerous than a person without your difficulties.  I further accept that this will increase the burden of imprisonment.

77Ms Sampson, you fall to be sentenced on the basis that you are a youthful offender and your rehabilitation is properly given weight in the sentence I will impose this day.

78As regards your prospects of rehabilitation, in each case, I think your prospects of rehabilitation are largely dependent upon your ability to remain drug abstinent when in the community.  In this respect, really only time will tell but it is possible to see at this stage at least good intentions and efforts in this regard.

79The reality is, that you are both adults and actions have consequences.  It is to be hoped that these proceedings will have a significant deterrent effects.

80Your counsel have pointed to a number of matters you are entitled to have taken into account in mitigation.

81You are each entitled to the full benefit of an early plea.  You have, by your plea, spared the witnesses the ordeal of giving evidence.  You have saved the community the time and expense of a trial.  You are entitled to have those matters taken into account in your favour and I do so.

82I accept in each case that your plea and expressions of remorse are genuine.  I take into account the contrition which I do accept as being inherent in the plea.

83I accept that your plea itself in each case should be used as some evidence of remorse.

84Mr Pellow, your counsel quite properly concedes that the only disposition open is a term of imprisonment.  Ms Sampson, your counsel quite properly makes the same concession as regards available disposition, but submits that a term of imprisonment combined with a CCO is open in your case.

85The Crown submit that a headed non-parole sentence is the only disposition open in relation to either of you.

86As well as matters personal to each of you to which I have referred including your prospects of rehabilitation, I must take into account other relevant sentencing considerations.

87Both general and specific deterrence are of considerable importance in matters such as this.  That is, I must seek to deter not only you, but others who would engage in like-conduct.

88Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community and deter you from future offending.

89Any sentence must promote rehabilitation.  As I have said in each case that is not only in your interest but in those of the community.

90In relation to each of you in coming to a view as to appropriate disposition, I have regard to and applied principles of totality in coming to a view both as to the duration of sentence and orders for concurrency and cumulation.

91Jesse Pellow, you are convicted and sentenced as follows:

92Charge 1, aggravated burglary, 42 months, base sentence;

93Charge 2, theft, five months;

94Charge 3, obtain by deception, five months, two months cumulative;

95Charge 4, theft, five months, two months cumulative;

96Charge 5, theft, five months;

97Charge 6, obtain by deception, five months, two months cumulative;

98Summary charge, unlawful assault, one month cumulative;

99That makes a total effective sentence of 49 months.  I direct that you serve 30 months before becoming eligible for parole.  I direct that 307 days be reckoned as served.

100I direct it be noted in the records of the court that were it not for your plea of guilty, I would have imposed a total effective sentence of 60 months with a non-parole period of 36.

101Tegan Sampson, Charge 1, aggravated burglary, convicted and sentenced to be imprisoned 42 months;

102Charge 2, theft, five months;

103Charge 7, possess drug of dependence, seven days;

104Summary charge, resisting an emergency worker on duty, one month cumulative;

105That makes a total effective sentence of 43 months.  I direct that you serve 30 months before becoming eligible for parole.  I direct that 55 days be reckoned as served.

106I direct it be noted in the records of the court that were it not for your plea of guilty, I would have imposed a total effective sentence of 50 months with a minimum of 40.

107I make the forfeiture and disposal orders in the terms of the drafts to which you have consented.  Counsel, check the cumulation please.

108MR PHILLIPS:  We are all in agreement that they are correct, Your Honour.

109HER HONOUR:  Thank you.  Counsel, is there any factual matter which needs to be corrected?

110MS ELLIS:  No, Your Honour.

111HER HONOUR:  Thank you.  Yes, very well.  Thank you.  Would you remove Mr Pellow and Ms Sampson please.  Adjourn the court.

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