Director of Public Prosecutions v Pike

[2024] VCC 606

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00330

DIRECTOR OF PUBLIC PROSECUTIONS

v

CONNELLY PIKE

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2024
DATE OF SENTENCE:	8 May 2024
CASE MAY BE CITED AS:	DPP v Pike
MEDIUM NEUTRAL CITATION:	[2024] VCC 606

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW - Sentence

Catchwords:             Aggravated burglary – Plea of guilty – Significant utilitarian benefit to plea – Complicity – Totality – Parity – Application of Bugmy principles.

Cases Cited:DPP v Abel [2024] VCC 236; Muldrock v The Queen (2011) 244 CLR 120; Bugmy v The Queen (2013) 249 CLR 571; R v McKee [2003] VSCA 16; R v Lacey [2007] VSCA 196; R v Renzella [1997] 2 VR 88.

Sentence:                 8 months’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh (plea) Mr S. Kaiser (sentence)	Office of Public Prosecutions
For the Accused	Ms S. Phair	Stephen Peterson Lawyers

HIS HONOUR: 

1Connelly Pike, you have pleaded guilty before me to one charge of aggravated burglary which carries a maximum penalty of 25 years' imprisonment.  I have recently sentenced your co-offender, Ben Abel, who is also your nephew, in respect of this matter.

Circumstances of Offending

2I sentenced your nephew in respect of home invasion, intentionally causing injury, theft and committing an indictable whilst on bail.  Parity is an important sentencing consideration in your case.  I sentenced Mr Abel on very different facts and more serious charges from which I am now sentencing you.

3The facts upon which I am sentencing you are set out in the Summary of Prosecution Opening and I do not propose to recite those facts.  Exhibit A forms part of these Reasons for Sentence. 

4In short, I sentence you upon the agreed basis that you did not enter the house.  You were the getaway driver effectively.  You drove the offenders to and from the scene, being complicit in aggravated burglary.

5The facts upon which I sentenced Mr Abel are set out in my published reasons for sentence[1].

[1]DPP v Abel [2024] VCC 236.

Objective Gravity of Offending

6I pause to note that in respect of the offending for which Mr Abel was sentenced, he was not the principal assailant however, he was complicit in serious offending.  The point is he did not play a leading role.  Your role was reduced further given that you were the getaway driver, but as Mr Singh pointed out on the plea, it is still a necessary role and it has often been pointed out in, whether it be armed robberies or aggravated burglaries, when the plan is for someone to drive to and from, that person is very much a part of what unfolds.

7It is important to emphasise your complicity only extends of course to the charge you face, which is aggravated burglary.

8You have admitted relevant prior convictions.  I received a victim impact statement and I take those impacts into account.  Some of the impacts to your victim flow from criminality that exceeds yours and I also take that into account.

9In your nephew's matter I had a lot of information regarding his cognitive profile.  He has an intellectual disability and the Muldrock[2] principles apply.  Significantly, he had no prior convictions, he is also younger than you.  A significant Bugmy[3] mitigation was available to Mr Abel, largely due to what I referred to as family dynamics, but it goes deeper than that and the historic dysfunction and difficult circumstances that he experienced to a significant degree, were shared by you also.  I accept the application of Bugmy in your case. 

[2]Muldrock v The Queen (2011) 244 CLR 120.

[3]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.

Personal Circumstances

10I also accept that your cognitive profile is relevant to sentence. That is, the cognitive profile as described by neuropsychologist, Mr Martin Jackson.  In particular, the finding of low to borderline functioning.

11In relation to Bugmy there is a relationship with an allied principle that emerges from cases such as Brooks and McKee[4] and Lacey,[5] which relates to moral culpability attaching to drug use and offences that might flow from drug use.  I accept that drug use and abuse has been central to your life, in particular central to your offending and central to the criminogenic factors that are present in your circumstances.  That includes periods of homelessness, gravitation to negative peers, idleness and of course being affected by substances.

[4]R v McKee (“Brooks and McKee”) [2003] VSCA 16.

[5]R v Lacey [2007] VSCA 196

12Due largely to Bugmy factors, to use that shorthand which is rather inelegant, you gravitated towards drug use at a very early age.  You were exposed to drug use at a very early age.  These matters are set out in Ms Phair's outline of submissions. I will not recite them, but I accept and adopt what is said in that regard as to your development, and your gravitation towards drug use at a very early age. 

13That is a matter that is relevant to sentence in this case, this case being another example of offending where the drivers of that offending were the drug milieu and the pursuit of drugs, and activities that sadly arise out of that lifestyle.

14You have made attempts in the past to address your drug use, in particular you had a stint at Wulgunggo Ngalu, that was unsuccessful.  You have emphasised to your counsel that you want to address illicit drug use, and you have insight that that is your major immediate problem in relation to offending.  Looking at your prospects of addressing that problem, one has to be guarded given what is before me in relation to the cognitive profile, but also the trauma background as evidenced in the experiences which I have referred to loosely under the term Bugmy factors.

Matters in Mitigation

15Nevertheless, you are at a point where you have been in custody for some time now and your stated intention needs to be treated with some respect and I anticipate that in the coming months, whilst you are in custody, you will continue to work towards a goal of accessing supports and being supported once you are released from custody.

Parity

16Parity, as I have said, is obviously a central matter in sentencing you.  That principle requires I also consider disparity, and I have referred to some of the disparity between you and Mr Abel.  Another aspect is the Sentencing Conversation that Mr Abel participated in, that is recognised as mitigatory, that is another area of disparity.

Totality

17In your case, you have available to you significant moderation in relation to the principle of totality.  Ms Phair has set out in Exhibit 4 what your circumstances have been, with periods of custody.  You have been in custody for some 152 days in this current stretch, you are serving a sentence, a sentence that will expire in June, but you have had other periods of custody in the not-too-distant past, including periods for which you are not able to have declared as time being served, and that is some 103 days. 

18But I apply the principle of totality to look at the totality of your offending and the periods of custody, particularly that you are currently undergoing, and the matter before me.  And I was told something about the charges that you are currently serving sentence for, so I have endeavoured to arrive at a sentence that reflects the principle of totality.

Plea of Guilty

19Another significant sentencing factor– apart from those obvious ones I have stated, Bugmy and cognitive functioning and parity, is the significance of your plea.  And it is worthy of particular mention because one is always entitled to a discount for a plea and it can vary as to the significance of the utilitarian value of the plea. 

20In your case, I regard the utilitarian value of your plea as being at the highest level.  That is for the reasons I expanded upon during the plea, but I will touch on in briefer terms now.  There were submissions filed, detailed submissions filed by the defence and the prosecution, addressing a very real question in your case which went to your record of interview.  There was at least a reasonable argument for the exclusion of that interview and had that taken place it is very likely that the charges against you would not have proceeded.

21In those circumstances and based on my assessment of the materials and what was planned in respect of that, and there was going to be evidence called on a voir dire, I regard the discount that is available to you by virtue of your plea of guilty, as very significant.

22Your Counsel, based on these very clear principles that apply in your case, particularly parity, has advanced that a straight sentence should be the appropriate outcome in your case.  That is, a sentence of imprisonment rather than a head sentence and non-parole period.  I had considered a head sentence and a non‑parole period and I have concluded that I am not able to impose a sentence that might give you the benefit of some corrections supervised support in the community, due to the application of parity and the other factors to which I have referred.  Your circumstances are not so disparate from Mr Abel's that a starkly different sentence would flow.

23Doing the best I can and balancing parity and disparity, the significance of the plea of guilty, the principle of totality and Renzella[6] time, and the matters in mitigation available to you, and giving appropriate weight to the significant importance of general deterrence and denunciation when it comes to confrontational aggravated burglaries, tying all those threads together I sentence you as follows. 

[6]R v Renzella [1997] 2 VR 88.

Sentence

24Mr Pike, on the charge before me you are sentenced to eight months' imprisonment. 

25That is to be served concurrently with the sentence you are currently undergoing.

26Pursuant to s6AAA were it not for your plea of guilty I would have sentenced you to a total effective sentence of three years with an 18-month non-parole period.

27I make the disposal order that is sought.

28I understand that there are some summary offences that are to be withdrawn.

29MR KAISER:  Yes, we would seek those to be formally withdrawn, Your Honour.

30HIS HONOUR:  Yes, they are withdrawn and struck out.  I do not believe there is any other orders I need to make?

31MR KAISER:  No, Your Honour.

32MS PHAIR:  No, Your Honour.

33HIS HONOUR:  No, thank you.  All right, good luck, Mr Pike.

34OFFENDER:  Thank you.  Thank you, Your Honour.

‑ ‑ ‑