Director of Public Prosecutions v Polglase
[2021] VCC 1491
•6 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 21-00911
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE POLGLASE |
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JUDGE: | HIS HONOUR JUDGE BAYLES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2021 | |
DATE OF SENTENCE: | 6 October 2021 | |
CASE MAY BE CITED AS: | DPP v Polglase | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1491 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Early plea of guilty; Aggravated burglary; Prior criminal record; Circumstances of Covid-19 taken into account; Youthful offender; Combination sentence; Good prospects of rehabilitation; Drug use; Alcohol; s 6AAA sentence indication of 12 months' imprisonment with a two-year community corrections order with 200 hours of community work.
Legislation Cited: Sentencing Act 1991 (Vic) s 6AAA; Confiscation Act 1997 (Vic) s 78(1).
Cases Cited:DPP v Meyers [2014] VSCA 314; Hogarth v The Queen [2012] VSCA 302; Worboyes v R [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308.
Sentence: Combined sentenced of imprisonment of nine months with a community corrections order for a period of 18 months - 246 days pre-sentence detention declared.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | Mr J. Sivaratnam |
| For the Accused | Ms K. Temperley |
HIS HONOUR:
1.Mr Polglase, you have pleaded guilty to one charge of aggravated burglary. The maximum penalty for this offence is 25 years' imprisonment. In committing this offence, you entered a residential premises looking to confront the primary victim in this matter Alvin Kelly-Britten. At the time you had with you a kitchen knife that was concealed in the pocket of your pants. Unsurprisingly, there were other people present in the house, including Kelly-Britten's mother, his sister and three young children. After entering the house, you produced the knife whilst walking towards Kelly-Britten.
2.I view this as a serious incident and the sentence that I give you today must impose a punishment that reflects the seriousness of the offending. It must also be a sentence that deters both you and others from committing this kind of offence again. Whatever your motivation was for this offending, this conduct was unacceptable, and the sentence must reflect this.
3.The circumstances of the offending are set out in the summary of prosecution opening dated 16 September 2021. I adopt those facts as part of these reasons for sentence. I will not repeat them in detail here except to highlight some of the important features.
4.You and Alvin Kelly-Britten are known to each other from childhood. I was told that you had a grievance because you heard that Kelly-Britten had said things about you and/or your partner and children. At about 4 pm on 2 February this year, you approached the house where Kelly-Britten was visiting. You had a kitchen knife concealed in your pants pocket. You knocked on the front door and it seemed you opened it before anyone could answer it. You walked inside and moved quickly in an aggressive manner towards where Kelly-Britten was sitting in the kitchen. You said 'Oi, Alvin' and produced the knife. Kelly-Britten immediately fled out the back door of the house.
5.Kelly-Britten's mother and sister witnessed the incident. They approached you and told you to put the knife down and leave the house. I was told that you complied with that direction and you put the knife down on the kitchen table. You were escorted to the front door and out of the house. You returned to the premises where you had come from, which I was told was within one minute's walk away.
6.The victim, Kelly-Britten, accompanied by his mother and sister, then went over to the premises that you had retreated to. They confronted you and a verbal argument followed. That argument developed into a fight between you and Kelly-Britten and the two of you had to be separated, where you each returned to your respective houses.
7.Police soon attended, they located the knife you had used, you were interviewed and made a no comment to police. No victim impact statement was tendered at the plea hearing. However, incidents such as this commonly cause fear and trauma in victims, and that includes all persons present inside a premises during an event such as this. I can only infer that in entering the premises you did so with a disregard for who would be inside other than Kelly‑Britten. Regardless of the particular impact on the victims in this case, occupants of a house have the right to be safe and secure inside their house and not to be intruded upon in the manner that you did on this occasion, entering the house without invitation in an aggressive manner with a knife in your possession that was produced and shown to the occupants in a threatening manner. Regardless of your motivation on this day, your conduct was completely unacceptable.
Nature and gravity of the offending
8.I am required to make an assessment of the nature and gravity of the offending. I take into account that you entered the premises with the intention of at least confronting Alvin Kelly-Britten in some manner. Other people were present inside the house at the time. You had with you an offensive weapon that was produced and shown to the victim. I have regard to the principles in DPP v Meyers [2014] VSCA 314 in assessing the seriousness of the offence of aggravated burglary, and also the principles in Hogarth in regard to what are referred to as confrontational aggravated burglaries.[1]
[1] Hogarth v The Queen [2012] VSCA 302.
9.In comprehensive and helpful written submissions filed on your behalf, Ms Temperley set out a number of factors relevant to this assessment. She pointed out that -
(a)Entry was not forced.
(b)You were alone and not in company with any other person or persons.
(c)The offending occurred in the daytime.
(d)The decision to commence the offending was made only shortly prior to its commission, you being situated at a house within one minute of the victim's house before going over there.
(e)There is no evidence of premeditation.
(f)There was no disguise and thus detection and prosecution were inevitable.
(g)The offending was of short duration, you desisted and surrendered the knife as soon as you were confronted by Kelly-Britten's mother and sister and were escorted out of the house without further incident.
(h)There was no physical contact assault upon any person inside the house nor any injury to any person.
(i)There is no suggestion that the victim was someone who was particularly frightened of you. Indeed, soon after the primary incident, Kelly-Britten came over to the house you had retreated to and confronted you, where a verbal and then physical altercation took place. The two of you were separated from each other.
(j)Ms Temperley submitted that the offending could be characterised as toward the lower end of the range of offences of its type.
10.Mr Goetz on behalf of the prosecution pointed to a level of premeditation and the fact that you took a knife with you. He submitted that it was a medium level example of the offence in terms of its objective seriousness. Mr Goertz accepted that the term medium level speaks to a range itself. Mr Goetz submitted on behalf of the prosecution that a term of imprisonment combined with a community corrections order would be within range. I do not find it necessary to resolve the small difference in each of the parties' verbal characterisations of this offending.
11.As I have said numerous times now, I view this as a serious incident. It was an illegal intrusion into the home of others with a weapon for, at the very least, a confrontational and threatening purpose. Factors that are significant in containing the assessment of the seriousness of the incident are that the whole incident was of short duration, you desisted and surrendered the knife when directed to do so, you left the house without further incident, no one was physically assaulted or injured inside the premises.
Personal circumstances
12.You are 22 years old. You are a young Aboriginal man from the Durack community in New South Wales. You are the eldest of six children. Your mother passed away when you were 17. You are in a relationship with Ebony Stewart and the two of you have two young daughters both under the age of three. I was told that you worked briefly at a scrap metal yard and that this work is available to you upon your release from prison. I encourage you to take up this work, regardless of how repetitive you may think it is. Many people in the community do work that they do not enjoy but working and earning a living will be integral to your rehabilitation, your capacity to be a father, a partner and a functioning member of society.
13.I was told that you have struggled with alcohol and methamphetamine use. On the day of your offending, you consumed a large amount of alcohol. You have faced some mental health issues, but you have been prescribed antidepressant medication since being in custody, which I am told that you have found beneficial.
Plea of guilty
14.You pleaded guilty to this offence at an early opportunity. This plea was entered during the COVID era and I have regard to the remarks of the Court of Appeal in Worboyes v The Queen[2] about the need for sentencing Courts to convey an actual and palpable amelioration of sentence for a plea of guilty entered during this time. I intend to give you a substantial reduction in your sentence by virtue of your plea of guilty. Further, I accept that you have shown remorse and have developed some insight into the seriousness of your offending.
[2] [2021] VSCA 169.
Youth and prospects for rehabilitation
15.You are still a relatively a young man and I must have particular regard to your youth and your prospects for rehabilitation. I regard these prospects being as good, but I must be cautious in saying that. You have a criminal history. I have regard to that criminal history. I note that there is nothing in that history as serious as the offending for which you fall to be sentenced today. Your prospects of rehabilitation are directly connected to your ability to stay away from illegal drugs and either moderate or eliminate your alcohol consumption. If you are to be a functioning member of society it is vital that you must find a way to rehabilitate yourself from illicit drug use. You cannot be a father to your two young daughters while you take the drug ice or while you abuse alcohol, nor can you be a father when you act on the impulses that led to this offending. I note as positive factors you have the support of your father, your siblings, and your partner Ebony Stewart.
16.You have served approximately eight months in prison so far and this has been all during the COVID era. I have regard to the numerous matters set out in the defence submissions filed on your behalf about the onerous nature of custody during this time. You have experienced periods of lockdown, there are limitations on work opportunities and limited rehabilitation programs available inside the prison facility.
17.I accept that this period of custody has been a lesson for you. You have been deprived of contact with your partner and children. You have been abstinent from drugs and alcohol during this time. I hope that this provides you with a break from which you can rebuild your life.
18.I have regard to the principles in Boulton's case and the scope and purposes for which a CCO may be imposed. [3] I take particular note of the statements of the Court at paragraph 2 of Appendix 1, where the Court endorses the notion that in some cases it will be appropriate to impose a community corrections order (with or without an added sentence of imprisonment) for relatively serious offences which would previously have attracted quite substantial terms of imprisonment. And further that a community corrections order is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance - both to the community and to the offender - of rehabilitating the offender. A community corrections order can be used to rehabilitate and punish simultaneously. Instead of needing to give less weight to denunciation or specific and general deterrence in order to promote the young offender's rehabilitation, the Court will be able to fashion a community corrections order which adequately achieves all of the purposes at once.
[3] Boulton v The Queen (2014) 46 VR 308.
19.A review of current sentencing practices reveals that whilst a term of imprisonment will usually be imposed for the offence of aggravated burglary, in appropriate circumstances a community corrections order may be imposed either with or without a term of imprisonment.
20.I must impose a sentence that denounces this offence and deters both you and others from committing offences of this type. At the same time, I intend to impose a sentence that reflects your early plea of guilty, a plea that was entered during the COVID era, and a sentence that attempts as far as possible to allow for your rehabilitation.
21.I note that in order to impose a community corrections order upon you, you must agree to the imposition of that order. With that caveat, I intend to sentence you as follows -
(a)On the charge of aggravated burglary, you will be sentenced to imprisonment for a term of nine months. I will order against that nine months that 246 days be declared as pre-sentence detention.
(b)In addition to this, if you consent to such an order being made you will be placed on a community corrections order for a period of 18 months.
(c)In addition to the mandatory conditions of a community corrections order I intend to impose the following conditions on the order -
(i) that you receive supervision during the duration of the order;
(ii) that you perform 50 hours of community work over the period of 18 months of the order. I note that I have intentionally moderated the number of work hours to be imposed on the order, because I take the view that the term of imprisonment that you have served will constitute the bulk of the punitive component of the order. I also fix this number of hours because I want to encourage you to resume paid employment as far as possible upon your release;
(iii) I further impose the conditions that you be assessed and attend as directed for treatment including testing for alcohol abuse or dependency;
(iv) that you be assessed and attend as directed for treatment including testing for drug abuse or dependency.
22.So, in essence, Mr Polglase, the conditions that I impose in addition to the fixed conditions are that you be supervised, you perform 50 hours of unpaid community, you be assessed and attend for treatment as directed for alcohol abuse or dependency and also for drug abuse or dependency.
23.I think I am required to read to you the mandatory conditions that are part of any community corrections order. Just give me one moment. Those conditions include that you must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment. You must comply with any obliged or requirement prescribed by the regulations. You must report to and receive visits from what is referred to as the Secretary but for practical purposes would be a supervising officer at Community Corrections.
24.You must report to Community Corrections Centre, the centre specified in the order, within two clear working days of the order coming into force. I would imagine that would be within two clear working days of your release from prison. You must notify Community Corrections of any change of address or employment within two clear working days after the change. You must not leave the State of Victoria except with the permission of Community Corrections. You must comply with any direction given by your supervising officer that is necessary to ensure that you comply with the order. Those are the mandatory conditions in addition to the specific conditions that I impose as part of the order.
25.I am required to make a declaration under s 6AAA of the Sentencing Act 1991 (Vic), Mr Polglase. I declare that had you not pleaded guilty to this charge, I would have imposed a sentence of 12 months' imprisonment and order that that be combined with community corrections order of two years' duration with 200 hours of community work. So, I have reduced that sentence because of your early plea of guilty in this matter.
26.Now, Mr Polglase, I am just speaking directly to you here. So, the intention and the understanding in the way in which I have framed this order is that you are ordered to serve a period of nine months' imprisonment. I have declared that 246 days be served as pre‑sentence detention, so my understanding that that is a fraction more than eight months of the nine.
27.What Corrections do with emergency management days is a matter for Corrections, which is to say from my perspective I must take the view that you will serve that whole nine months. If Corrections deem appropriate through the way in which they administer emergency management days, you may be released in less than nine months. But that is not a matter that I have regard to, that is entirely a matter for Corrections at their discretion.
28.Once you are released from prison you are to report to, as I understand it, the Swan Hill office of Community Corrections within two days of your release, where you will be on a community corrections order for a period of 18 months. As I have indicated, you are to be supervised, you are to perform 50 hours of unpaid community work and you are to be assessed and to attend as directed for treatment for alcohol abuse and also for drug abuse.
29.Now, I will order that if deemed appropriate by Corrections the hours that you perform of treatment and rehabilitation are to be counted towards your unpaid community work. So, in essence this is an order where the punishment component is really loaded into the term of imprisonment you receive, and the community corrections order is intended to facilitate your rehabilitation.
30.Mr Polglase, I think you have been on mute until now, but I will just ask if you can be taken off mute. I will just wait till that happens.
31.OFFENDER: Yes, all right.
32.HIS HONOUR: Now, do you understand the order that I have just - - -
33.OFFENDER: I can't really hear.
34.HIS HONOUR: Have you heard, and do you understand that it is my intention to give you a period of nine months' imprisonment?
35.OFFENDER: Yeah.
36.HIS HONOUR: All right. Have you heard and do you understand that it is my intention that you then be released on a community corrections order?
37.OFFENDER: Yeah, yeah, yeah.
38.HIS HONOUR: All right. So, I'll just say it again. In addition to the mandatory conditions of a community correction order the order goes for 18 months. You are to be supervised. You are to perform 50 hours of unpaid community work and you are to attend for assessment for treatment for drug and/or alcohol use.
39.OFFENDER: Yep.
40.HIS HONOUR: Do you follow all those matters?
41.OFFENDER: Yes.
42.HIS HONOUR: All right. Now, I can only give you that order if you consent to being on the corrections order.
43.OFFENDER: Yes.
44.HIS HONOUR: So, do you agree to going on that order?
45.OFFENDER: Yes.
46.HIS HONOUR: And do you go agree to being bound by those conditions?
47.OFFENDER: Yes.
48.HIS HONOUR: The final thing I just want to explain to you is you can breach that order in two ways. You can breach it by not complying. That means not doing what you have to do.
49.OFFENDER: Yep.
50.HIS HONOUR: And you can also breach it if you reoffend.
51.OFFENDER: Yes.
52.HIS HONOUR: If you breach it, you'll be brought back before me and you fall to be resentenced.
53.OFFENDER: Yes.
54.HIS HONOUR: Very well. So, it's important that you comply with directions and that the directions are the directions in that order and that you don't reoffend by committing another offence. Do you follow all that?
55.OFFENDER: Yes.
56.HIS HONOUR: So, do you agree to be bound by the terms of that order?
57.OFFENDER: Yep.
58.HIS HONOUR: Thanks. Right. So, Ms Temperley, as I understand it, I know it's been a bit tricky doing community corrections orders and getting the consent and so forth during - with online hearings. It probably applies less so to an order of this nature given the period of imprisonment as well, but as I understand it the order will be drawn up by the Court. That order will obviously be provided to you, Ms Temperley, and to you, Mr Goetz. It will ultimately be given to Mr Polglase and it will be a matter between him and Corrections as to when he's released and when the order commences.
59.MS TEMPERLEY: Indeed, Your Honour, and I'll make enquiries about the emergency management days as well so that Mr Polglase is aware.
60.HIS HONOUR: All right. Now, Mr Goetz, I understand there's a forfeiture order or a disposal order.
61.MR GOETZ: Yes, Your Honour. On the last occasion I foreshowed a disposal order pursuant to s 78(1) of the Confiscation Act 1997 (Vic) in relation to the knife. It should have been provided to Your Honour's associate.
62.HIS HONOUR: I think it has been. Ms Temperley, I presume that is without opposition.
63.MS TEMPERLEY: That's correct, Your Honour.
64.HIS HONOUR: I make that disposal order. So, I've made the s 6AAA declaration. Is there anything else that needs to be covered from either of your perspectives?
65.MR GOETZ: No, Your Honour.
66.MS TEMPERLEY: Nothing from me, Your Honour.
67.HIS HONOUR: Very well. All right, thank you both for your assistance in this matter.
68.MS TEMPERLEY: As the Court pleases.
69.HIS HONOUR: Thank you, I'll adjourn the Court.
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