Director of Public Prosecutions v Polglase
[2024] VCC 920
•20 June 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00202
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE POLGLASE |
---
JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 5 June 2024 | |
DATE OF SENTENCE: | 20 June 2024 | |
CASE MAY BE CITED AS: | DPP v POLGLASE | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 920 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - sentence
Catchwords: Guilty plea – aggravated burglary – forced entry, late at night, in company, intending to assault – armed with knives – application of Bugmy principles –– youthful offender – parity – general deterrence – good prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Bugmy v. The Queen (2013) 249 CLR 571; Markovic v. The Queen [2010] VSCA 105; Boulton v. The Queen [2014] VSCA 342
Sentence: Two-years, six-months Community Correction Order made with conviction
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D.R. Cordy | Office of Public Prosecutions |
| Victoria | ||
| For the Accused | Ms A. Buckley | Victorian Legal Aid |
HER HONOUR:
1Leslie Polglase, following a sentence indication hearing before me[1], you pleaded guilty to a single charge of aggravated burglary, the maximum penalty for which is 25 years’ imprisonment.
[1]Sentence Indication Hearing held on 4 June 2024.
2The charge arises from the events of 8 February 2023 when, in company with the two co-offenders, you forced entry into the home of the victims at around midnight, intending to assault them, while you and your brother were armed with knives.
3You were 22 years old at the time of the offending. The co-offenders were a 16 year old male and your 19-year old cousin Daniel Bux.
4You have a relevant prior criminal history, which you have admitted.
Circumstances of offending
5I am now going to briefly outline the circumstances of your offending.
6The victims in this matter are Kode Ling, aged 22, and Hayley Mead, aged 20. They were in a relationship and lived together in a unit in Swan Hill. Daniel Bux knew the victims, as his then partner, Karinda Alexander was friends with Hayley Mead. Prior to this incident, the victims had lived with Daniel Bux and Karinda Alexander for several months at a time when they were homeless.
7You and the others had become aware that Kode Ling had been making disparaging remarks about your Aboriginality and about your deceased mother.
8On 8 February 2023, after drinking with the others at your home, the three of you went around to the victims’ house shortly before midnight. The victims were at home in bed, but were disturbed by loud banging on their front door, and heard you and the others yelling for Kode Ling to come outside. One of you was heard to yell, ‘Kode let’s scrap’.
9Wearing only his underwear, Kode Ling went into the loungeroom where he could see the front door. He yelled at you to ‘fuck off’ and armed himself with the wooden handle of a shovel. Hayley Mead stayed in her bedroom and called Triple 0.
10After about three attempts, you and the co-offenders managed to kick the front door in, and you and the 16 year old co-offender began to argue with Kode Ling about the things you had heard that he had been saying about your Aboriginal culture and your mother. Mr Bux stood by smiling, but did not enter this argument.
11You and the co-offender waved the knives around and pointed them at Kode Ling. At one point, you threatened to stab Mr Ling if he didn’t put the shovel down. Mr Ling then placed the shovel handle down close to the front door, where you were all standing.
12As the offenders became more aggressive, you and Daniel Bux stepped in and out of the unit, encouraging Kode Ling to come outside. At one point, you stabbed the front door with your knife.
13The 16 year old co-offender stepped inside the unit and picked up the wooden shovel handle. He used it to charge at Mr Ling, repeatedly swinging the shovel at him. Mr Ling used his arm to protect his head, and was struck in the arm by the handle of the shovel.
14Ms Mead began screaming and neighbours attended at the front of the unit. Mr Bux then urged you all to leave, and together with the other two, you ran off.
15You were arrested on 10 February 2023 and were interviewed by police. You made a number of admissions to attending at the house and verbally confronting Mr Ling about the offensive comments you understood he had made. However, you denied that anyone was in possession of a knife, or that you had entered the unit. You said that Mr Ling ‘swung first’ and was then assaulted by one of the co-offenders in self-defence.
Gravity of offending
16I am now going to make some comments about the nature of your offending.
17Aggravated burglary is a serious crime, as is clear from the maximum penalty of 25 years’ imprisonment. Here the gravity of your offending is marked by the fact you forced entry into the home, late at night and in company, intending to assault the victims. Of real concern, you and your younger brother had armed yourselves with knives.
18The risks inherent in a confrontational situation, when armed with knives, are obvious. This was a fast-moving incident, which I accept unfolded in a spontaneous manner. The fact you carried knives can only have heightened the fear experienced by the victims, not knowing what you may do with the knives, which you had threatened to use if the victim did not put down the shovel handle. Fortunately, the risk of harm posed by the presence of the knives did not eventuate in this case. It was your younger brother who charged at the victim, not you.
19This was not sophisticated offending, but nor was it entirely unplanned. The victims were targeted in their homes, where they are entitled to feel safe, late at night.
20Against these factors, I also have regard to the fact that when prompted by Mr Bux to leave you did so immediately.
21It goes without saying that this must have been a terrifying ordeal for the victims. This is borne out in the victim impact statement of Hayley Mead who speaks of her home being violated, leaving her feeling victimised and powerless. She no longer feels her home is a safe place. Ms Mead describes feeling frozen, unable to control how she felt or responded at the time. She says this anxiety has continued long after the incident.
22Mr Ling also told police that the incident ‘scared the hell out of [him]’, leaving him unable to sleep or work.
23I have had regard to the impact of this offending on the victims in sentencing you.
24You were motivated to engage in this offending in retribution for the offensive comments you believed the victim made about your Aboriginal culture and your deceased mother. You were extremely close to your mother and the insults must have been deeply offensive to you. Alcohol also had a role to play in your response, but this does not reduce your responsibility for the aggravated burglary. Insults, no matter how hurtful and wrong, can never justify violence. To involve the 16-year old co-offender in this offending was a serious error of judgement. Your moral culpability for your conduct is significant, however this is also informed by your personal circumstances, to which I now turn.
Personal circumstances
25You are a First Nations man who was born in Swan Hill in April 2000. You are now 24 years old.
26You are the second eldest of five siblings to your parents.
27Your childhood was a remarkably difficult one. Your father, Wayne Hinckman, had a long-standing addiction to heroin and prescription drugs. Although he had work as a truck driver, he spent much of your childhood in gaol. By the time you were 12, the longest period your father had been out of prison for any one period was two years.
28When he was around, you and your siblings were exposed to your father’s violent behaviour, including violence directed at your mother, Belinda Polglase.
29
Tragically, your mother died from pneumonia, in your presence, in September 2016 when you were only 15 years old. You were extremely close to your mother, but never received grief counselling following her death. Immediately following your mother’s death, your father was incarcerated again for approximately
12 months, leaving you without a parent. As one of the oldest children, you bore responsibility for the younger ones.
30The dire circumstances you confronted as child into early adolescence are best expressed in an insightful letter provided on your plea by Aboriginal Elder, Aunty Debra Chaplin dated 20 May 2024.[2] Aunty Debra Chaplin is a proud Watti Watti Wamba Wamba woman who is an elder in your community, and has known your family for 18 years and has known you since you were four. She describes the many absences of your father during periods he was in gaol.
[2]Exhibit 1 – Letter dated 20/5/24 from Ms Debra Chaplin
31Aunty Debra says her first contact with your family was when she received a call from the police station following your father’s arrest, which she says left your mother in turmoil. She says that, without a partner to support her, your mother turned to drugs after the birth of her fourth child. Aunty Debra says that this was hard on the family, and as one of the older boys, you had to 'take the reins.'
32When your mother passed, Aunty Debra says you had to step in as 'the man' of the house. She observes that there was not much opportunity for you to attend school on a regular basis, and states that you and your siblings 'just slipped through the cracks …[were] put in the too hard basket really'.
33You attended primary and secondary school in Swan Hill, completing Year 8 at Swan Hill College. After finishing school, you attended TAFE in Years 9 and 10.
34You began using cannabis at a young age, but ceased when you were 18 due to work commitments. From the age of 16, you worked for Swan Hill Scrap Metal company until last year. It was at the age of 16 that you met your long-term partner, Zaria and you moved in with her. However, at this time your younger siblings were placed in out of home care by child protection services, separating you from the rest of your family.
35You and Zaria now have four children, aged seven, five, three and seven months. In her letter, Aunty Debra speaks of you as ‘a great family man’ and says you and Zaria have gone to lengths to isolate yourself and your family from ‘outside dramas’ and to set ‘solid boundaries to make a safe environment’ for your children. You have no ongoing contact with your father.
36Since this offending, you have been supported by a Job Coach at MADEC in Swan Hill to enrol in and complete a Civil Construction Certificate III. This is to your credit. You were recently employed with for Malley Hay, but once these charges became known, your employment was terminated.
37You have a prior criminal record, but it is not an extensive one. You had appearances in the Children’s Court for offences including unlawful assault, dishonesty offences and burglary, for which you received non-conviction sentences. In 2019, you were fined $300, without conviction, for making a threat to inflict serious injury and committing bail offences. In February 2020, you were convicted and placed on a 12-month community correction order for offending that included unlawful assault, contravening a family violence intervention order and property damage. You successfully completed that order.
Matters in mitigation of sentence
38Having discussed the objective gravity of your offending, I now turn to discuss the matters that operate in mitigation of your sentence.
39First and foremost, you entered a guilty plea to the charge of aggravated burglary. In doing so, you saved the victims from having to relive these events by giving evidence in court. You also saved the court and the community the cost and expense associated with a trial. Although yours was not an early plea, you are entitled to a sentencing discount given the utility of your plea.
40In addition to the remorse demonstrated by your plea, when you were assessed by Community Corrections, you indicated remorse for your conduct and made no attempt to minimise your offending. You told Corrections you felt 'sick' after the incident and immediately ceased all alcohol consumption. You acknowledged the victims would have been frightened by your offending.
41Finally, you experienced significant disadvantage, exposure to the effects of your father's drug use and incarceration leading to chronic instability in your formative years. As Aunty Debra astutely observes, your 'journey has been marked by trying to overcome trials and trauma with no positive male role models in the face of adversity'.
42Moreover, as Aunty Debra highlights in her letter, your identity as an Aboriginal young man was difficult for the reasons she explains:
'It was hard for Les: black kids growing up in white skin…too black for whites, too white for blacks. Made feeling ashamed for being proud and shot down because of it. Les now has a positive outlook and his self-esteem and sense of identity have improved'.
43On your behalf it is submitted that your experience of early childhood instability, exposure to parental drug abuse and violence, enlivens the principles enunciated in the case of Bugmy[3], a submission that was fairly accepted by the prosecution. I have given full effect to the principles in Bugmy in reducing your moral culpability, as opposed to your legal responsibility, for this offending, and in moderating the need for the sentence I impose to operate as a deterrent to others. As the High Court observed in the case of Bugmy, the moral culpability of an offender whose formative years have been impacted by trauma, dysfunction, instability and exposure to violence, cannot be equated to an offender whose earliest years have not been impacted in this way.
[3]Bugmy v. The Queen (2013) 249 CLR 571
44You were 22 years old at the time of this offending. Your youth also remains a relevant factor in your sentence. The law recognises that youthful offenders are more prone to ill-considered, rash decisions. The law generally regards the rehabilitation of youthful offenders as a highly relevant sentencing consideration. Youth also moderates the weight that attaches to other sentencing considerations such as general deterrence and denunciation, although the extent to which it does also depends on the seriousness of the offending.
45Here the offending was serious, but that does not extinguish the relevance of your youth.
46Relevantly, the law also recognises that a sentence of imprisonment in an adult custodial setting is a sentence of last resort for youthful offenders.
47Moreover, you have demonstrated real prospects of rehabilitation in the 16 months since you were involved in this aggravated burglary. You have ceased all drinking. You have engaged in training to improve your prospects of employment and, until recently, had secured employment with Malley Hay. As Aunty Debra observes you and Zaria have made significant efforts to ensure you and your family are removed from negative influences. You retain Zaria’s support and she is obviously a source of love and stability in your life. You have remained focused on securing employment, supporting your children and as Aunty Debra says, being a provider and a good role model for your children.
48I find that you have very good prospects of rehabilitation and in my opinion, you present as a low risk of offending into the future.
49At the sentence indication hearing, I heard evidence from your partner, Zaria Ruby-Anne Stubbs. During her evidence, Zaria detailed the difficulty your imprisonment would cause her and the four young children, financially and emotionally. There is a real risk that if you were to be imprisoned, she could not meet rental payments on her Family Tax Benefit payment, risking homelessness for her and the children.
50Zaria also confirmed that you are a ‘hands on’ on father with the children and that she would have no other adult supports if you were to go to gaol. While I accept that the hardship to your family would be significant if you were to go to gaol, I do not consider these matters meet the high threshold of being exceptional, to enliven the principles in Markovic[4]. However, I do have regard to the fact that the hardship likely to be experienced by Zaria and the children if you were imprisoned would add considerably to the burden of any time you were to spend in custody.
[4]Markovic v. The Queen [2010] VSCA 105
51On your behalf, Ms Buckley submits that all relevant sentencing considerations could be met by a lengthy community correction order. Such an order, it is submitted, could meet the need to punish you while supporting your ongoing rehabilitation in the community. In contrast, the prosecution submits that the objective gravity of your offending warrants a term of imprisonment, although one combined with a community correction order.
52I have also had regard to the sentencing principle of parity. In this matter, your co-offender Mr Bux was sentenced to a community correction order following an early guilty plea. He was sentenced to a 20-month community correction order. However, as I observed when sentencing him, his role in the offending was less serious than yours, notably he was not in possession of a knife at the point of entry. The 16-year old co-offender was sentenced in the Children’s Court to six months’ probation, without conviction, on 29 April 2024. Given the different sentencing principles that apply when sentencing children, this sentence is of little relevance when considering the principle of parity. However, I do have regard to the sentence I imposed on Mr Bux in sentencing you.
53This is not an easy sentencing task. On the one hand, your offending was serious and you played a prominent role in the offending, brandishing a knife as you forced entry into the victims’ home late at night. The objective gravity of such offending would ordinarily warrant a custodial term to give effect to the sentencing considerations of general deterrence and denunciation.
54Against this however, there are powerful factors that operate in mitigation of your sentence, including the mitigating effect of your childhood deprivation by giving full weight to Bugmy principles, in addition to your youth. You have taken steps to recognise and deal with the unhealthy aspects of your alcohol use. You have demonstrated a strong work ethic. These matters are all to your credit, particularly against a background of such significant childhood disadvantage. Further, your guilty plea, your demonstrated family support, and my positive assessment of your prospects of rehabilitation, lead me to conclude there is a corresponding reduction in the need for the sentence to operate as a specific deterrent to you and to protect the community from future offending by you.
55I also have regard to s5(4) of the Sentencing Act, which makes it clear that imprisonment is a sentence of last resort, stating that such a sentence must not be imposed unless the court considers:
that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
56In the guideline judgment of Boulton, the Court of Appeal observed that a community correction order is intrinsically punitive and is capable – depending on the length of the order and the nature and extent of the conditions imposed – of being highly punitive.[5] In concluding that such an order can meet the sentencing objective of deterring others, the Court of Appeal stated:[6]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, …). 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 CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[5]Boulton v. The Queen [2014] VSCA 342 at [124]
[6]Ibid. at [131]
57In my view, these observations have application to your case. You have now been assessed as suitable for a community correction order, subject to certain conditions, and have consented to such an order being made. Ultimately, I have concluded that a lengthy community correction order, with stringent conditions, is an available sentence to meet the relevant sentencing considerations, including general deterrence, just punishment whilst affording the best prospects for your rehabilitation and the community safety that will follow. If you could please stand.
Sentence
58Balancing each of the matters to which I have referred, while having regard to the maximum penalty for the offence of aggravated burglary, you are convicted of this offence and sentenced to a two-year, six-month community correction order, during which you will be supervised by community corrections, undertake 250 hours of unpaid community work and engage in alcohol treatment and rehabilitation as directed. I further direct that you engage in programs to reduce the risk of re-offending, in order to further promote you prospects of rehabilitation.
59To give prominence to the rehabilitative component of the order, pursuant to s48CA of the Sentencing Act, I direct that 100 hours of any treatment or rehabilitation undertaken by you under this order are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
60In addition to the conditions I have imposed, there are standard conditions of a community correction order. First and foremost, you must not commit any other offences punishable by imprisonment during the life of the two year six month order. You must report within two working days of today to your nearest community corrections office. You are required to advise your supervising Corrections officer of any change of your residential or work address and you must do so within two clear working days.
61It is a term of all community correction orders that you must submit to visits as directed, and obey all instructions and directions of your Corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising Corrections officer.
62You should be aware that the order can be breached if you do not comply with any of these conditions, or if you offend while it is in place. If you were to do so, you would return before me for breaching the order. I may have to re-sentence you on this charge, and I may have to sentence you for breach of the order.
63Pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a period of three years' imprisonment with a non-parole period of two years. That is the sentence I would have imposed if you had run a trial and been found guilty.
64Finally, I make the disposal order sought by the prosecution, noting that it is not opposed.
- - -
0
2
0