Director of Public Prosecutions v Quilliam
[2024] VCC 1801
•11 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 24-00996
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT QUILLIAM |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 17 September 2024 |
DATE OF SENTENCE: | 11 November 2024 |
CASE MAY BE CITED AS: | DPP v Quilliam |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1801 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Aggravated Burglary - Person Present; Recklessly Cause Injury; Theft; Obtain Financial Advantage by Deception; Intentionally damage property; Youthful Offender.
Cases Cited:Director of Public Prosecutions v Ristic - [2024] VSCA 25; Bugmy v The Queen - [2013] HCA 37 - 249 CLR 571; R v Mills [1998] 4 VR 235; Director of Public Prosecutions v Lawrence [2004] 10 VR 125; DPP v Reynolds - [2022] VSCA 263 - 71 VR 336
Sentence:Total Effective Sentence is 6 years imprisonment with a non-parole period of 3 years and 10 months; Licence cancelled and disqualified for a period of 6 months to take effect from date of release.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
For the Accused | Mr J. Barrera | Victoria Legal Aid |
HIS HONOUR:
1Scott Quilliam, in the early hours of New Years Day on 1 January 2024, you forced your way into a residence in Grovedale. The victim, a young woman, was at home alone and asleep. At first she did not wake up as you stole items from her bedside table. You had grabbed a broom handle from inside the premises to use as a weapon. Even though the victim presented no danger to you, nonetheless, you struck her hard to the head, causing her to wake up in utter shock. Your blow caused a significant laceration to her forehead.
2The victim jumped up from her bed and saw you standing in her bedroom about to hit her again. She was able to grab the curtain rod and bravely used it to defend herself. You moved back out of her bedroom into her house, stealing expensive electrical equipment and other items, including her wallet and car keys.
3The victim took the opportunity to run out of her front door, where she was able to flag down a passing motorist or other residents to get help. She was taken to hospital where her wound required stitches. It was a substantial gash. The victim has been left with a scar on her forehead. No small matter for a young woman.
4You took her car and drove it first to a service station where you used her credit card to pay for your chocolates and drinks.
5You then drove to the suburb of Hamlyn Heights into a small court. There you rammed into a total of three garage roller doors, plainly trying to force your way into the garages to get into the houses. You were unsuccessful in that endeavour at first, at all three properties, but you caused significant damage to each of the garage doors.
6You drove the stolen car back to the first garage and rammed it again, causing further damage, enabling you to get into the garage and the house. This house was also occupied by a young woman, alone at the time. You stole some tools. Your driving into the garage doors led to an owner who was at home to call the police. When they arrived you were found hiding in the bushes of the first house that you had driven into.
7The car stolen from the first victim was badly damaged. It was worth $7,000 but was uninsured. The owner had to sell it for $500. The damage caused to the garages was significant, costing one victim her $1,000 insurance excess; another estimated his damage at around $3,000; and the third, the repairs cost $4,380 to replace the garage door.
8You were a disqualified driver at the time. That arose from the large number of criminal convictions and an order made by a Magistrate disqualifying you from driving for four months on 14 December 2023, just over two weeks before these crimes.
9In addition to the interference with your licence, which you ignored, the Magistrate placed you on a 18 month community corrections order. The offending that resulted in the community corrections order included similar aggravated burglary offending, which is most concerning. I will return to your prior history shortly.
10The impact of your crimes on 1 January 2024 were set out in the victim impact statement of the first victim who was asleep when you broke in and hit her. She wrote how your crimes affected her sleep and caused her to be hypervigilant and stressed at noises, checking doors and windows over and over. She felt she could not live in the house anymore and had to relocate, causing significant expense. She has lost trust in the community.
11The victim of the second aggravated burglary, who thankfully remained asleep while you rammed into her garage and stole tools, she wrote of her fear at what might have been, especially after she learned of what you did to the first victim. She too fears every noise and is hypervigilant checking the house. She needs sleeping tablets to assist in getting to sleep. She feels anxious when she returns home each evening.
12Self-evidently these crimes are serious. They have wide impact in our community as people fear criminals may break in and terrorise and/or injure them. Everyone, and certainly the victims of the aggravated burglaries here, were entitled to feel safe in their own home and in their own bed. To have premises broken into and be attacked as you sleep, as the first victim was, is a nightmare that sends chills through decent members of our community.
13The courts are called on to respond to these frightening crimes with stern punishment involving years of imprisonment. The Court of Appeal has made clear to sentencing judges that denunciation, punishment, deterrence and protection of the community are the primary sentencing purposes, and that significant weight must be given to these retributive sentencing purposes, even in circumstances where the offenders are young.
14In recent days, that is 29 October 2024, the Court of Appeal has heard a Director's appeal from a Drug and Alcohol Treatment sentence imposed on a 52 year old man who had committed aggravated burglaries, where victims were asleep in their premises. In that case no victims were confronted or injured. That accused had on two occasions armed himself with a knife, which was seen on CCTV footage from within the houses. He was disguised. He too was on a community corrections order at the time. That case had all the complexities of the Drug Court sentencing regime, which are not present here. However, the Court of Appeal spoke in general terms about the crime of aggravated burglary in the following ways.
15It said:
When one has regard to the maximum penalty for aggravated burglary of 25 years' imprisonment and all of the matters to which we have referred, it is difficult to see how, in all the circumstances, sentences of less than three years could have been imposed on any, much less each, of the aggravated burglaries. Similarly, it is very difficult to see how orders for cumulation of only two months could have been imposed on any of these charges. Sentences of imprisonment ranging from one year and eight months to two years and two months were each wholly outside the permissible range of sentencing options available to the judge, as were the extremely modest orders for cumulation of two months on each of the aggravated burglary charges, other than the base sentence.
It follows from the above that it was not open to the judge to consider a sentence of no more than four years was appropriate. In our view, it was not open to the judge to consider a total effective sentence of less than six years, which itself would have been very modest, was appropriate. It follows that it was not open to the judge to impose a Drug and Alcohol Treatment Order and thus the sentence he imposed was not open. Indeed, it was wholly outside the permissible range of sentencing dispositions and therefore manifestly inadequate.[1][1] Director of Public Prosecutions v Ristic - [2024] VSCA 251 [54]-[55] (‘Ristic’).
16Obviously each case is different. The case I have referred to is Ristic. As I said the accused was a 52-year-old man at the time, he had a long criminal history, including sentences of over five and a half years and another of over seven years for previous aggravated burglaries. He, in that instance, committed six aggravated burglaries and three attempted aggravated burglaries over a period of seven months. He had lifelong drug problems. He pleaded guilty at a time which permitted him to receive an augmented utilitarian benefit.
17Your personal circumstances are much different given your young age and limited approximate relevant criminal history. The point here to understand is the Court of Appeal has again and recently emphasised that aggravated burglaries of this kind warrant significant terms of imprisonment, indeed the community expects such sentences.
18As to your personal circumstances, the most important matter to raise is your young age. You were 20 at the time and are now 21. Your early childhood unfortunately was marred by the violence and drug addiction of your father. Your parents separated when you were 10. You have an older sister and two younger siblings.
19You attended local Geelong schools until age 15. You left to work in the concreting industry where you remained and did well enough for three years. You then undertook an apprenticeship in carpentry.
20Your relationship with your mother deteriorated and with an intervention order put in place, you were unable to remain in her house and became homeless.
21You were in a relationship but your drug use meant it came to an end.
22You have had a problem with binge drinking since age 16 or 17. You also have had significant problems with cannabis for some years. This cannabis, or drug use, progressed into the use of methylamphetamines and then heroin.
23The opinion of the psychologist engaged by your lawyers was that you had no history of adult ADHD, bipolar or any other mental illness. In the context of facing sentencing for these serious crimes, you were said to be moderately depressed and anxious. In his report Mr Cummins said he diagnosed you as suffering symptoms of trauma due to your father's behaviour and a moderate level of depression.
24Since your remand on 1 January 2024, you have done what courses you could both vocational and rehabilitative in particular, drug and alcohol programs while in prison. All this is to your credit. The importance of these programs to you was evident in your letter tendered at your plea. You wrote:
My time here at Karreenga has given me time to think and reflect on my crimes and offences. I have caused hurt not only to my community but to my family and to myself. Coming to prison has been a hard lesson for me. Prior to my offences I struggled with drug addiction and mental health issues. I have utilised my time in prison to get the help I need. I have reached out to drug programs to help me come to terms and confront my issues, to my addiction. These programs are confronting however have been the help I needed. I also have continued to engage in voluntarily Narcotics Anonymous programs here in Karreenga for additional support and guidance… Contact with the mental health services provided in prison has helped me with coping strategies and to start the healing process.[2]
[2] Exhibit 4 ‘Letter from Mr Quilliam’ tendered 17 September 2024.
25In prison you have secured yourself a job to keep busy and to maintain a healthy routine. You also engage in education to gain more opportunities.
26Despite your stated progress in prison and your access to mental health clinicians, Mr Cummins wrote in a generalised way that prison would be more onerous for you though because of your anxiety and depression than those without that. Your counsel stepped back from this.
27What is of greater importance is what the High Court said in Bugmy[3] and the Court of Appeal said in Herrmann[4] in speaking with respect to childhood deprivation. In your case, it is not said there is a causal connection between your offences and your upbringing, rather your childhood difficulties have marred you in ways unlike others whose childhood years were nurturing and steady. I take that into account in assessing your moral culpability.
[3] Bugmy v The Queen - [2013] HCA 37 - 249 CLR 571
[4] DPP v Herrmann - [2021] VSCA 160 - 290 A Crim R 110
28Likewise, given your young age, I have factored in your immaturity and generally your vulnerability in custody, that is specifically in an adult gaol.
29I am well mindful and apply the principles relating to sentencing young offenders as set out in Azzopardi v The Queen,[5] in particular matters raised in paragraphs 34-40 of that Court of Appeal decision. What was set out by Justice Redlich under the heading 'Sentencing principles concerning youth' was a number of sentencing considerations. Given the sentence that I will shortly announce, it is in my view appropriate to return back to these principles. His Honour said firstly:
Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.[6]
[5] [2011] VSCA 372 (‘Azzopardi’)
[6] Ibid [34] –[35].
30Before moving to the third point, his Honour made the critical observation that:
A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of offenders are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of an offender.[7]
[7] Ibid [35], citing R v Lam & Ors [2005] VSC 495 [8] (citations omitted).
31The third sentencing consideration mentioned by his Honour was that:
Courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[8]
[8] Ibid [36], citing R v McGaffin [2010] SASCFC 22 [69], R v Lam & Ors [2005] VSC 495 [8] & R v Hatfield [2004] VSCA 195, [10] (Chernov JA) (citations omitted).
32His Honour went on to refer to the well-known decision of Justice Batt in R v Mills[9] where his Honour in that case was dealing with a first offender who committed a serious offence.
[9] [1998] 4 VR 235.
33Justice Redlich in Azzopardi went on at paragraph 38 to say:
In the same year as Mills was decided, this Court recognized that there would be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations.[10]
[10] Azzopardi [2011] VSCA 372 [38], citing R v Wright [1998] VSCA 84 [6] (citation omitted).
34His Honour went on to refer to another decision of Justice Batt, that is DPP v Lawrence.[11] At paragraph 39 His Honour Justice Redlich referred to the very serious violent offence that Justice Batt dealt with in Lawrence. He quoted from Lawrence in this way:
… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender's youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a 'back seat' to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[12]
[11] [2004] 10 VR 125 (‘Lawrence’)
[12] Azzopardi [2011] VSCA 372 [39], citing Lawrence [2004]CR 125 [132] (Citations omitted).
35It is notable that you were found at the scene where the car was crashed into the roller doors, significantly intoxicated.
36Yours is a case where the gravity of your crimes means that the usual importance of rehabilitating youthful offenders and keeping them out of adult prisons must yield to other sentencing purposes that I have already mentioned, such as denunciation, deterrence and protection of the community.
37You did indicate a plea of guilty early on and thus, the utilitarian benefit of the plea is significant. Your plea of guilty is indicative of remorse and you have expressed further sentiments of remorse in your letter and to Mr Cummins. I have taken into account your remorse. It adds to your prospects of rehabilitation. Those prospects and your rehabilitation remain important given your youth.
38You have a concerning criminal history that arose with quick fire crimes in 2023, from August until these dreadful crimes on 1 January 2024. There needs to be some weight given to deterrence to you in the circumstances. You were, as mentioned, on a community corrections order, a sentence ordered by a Magistrate to seize the chance that you would or could rehabilitate. You were also on bail, having committed offences within days or weeks either side of the imposition of the community corrections order.
39The summary of the offences that brought about the community corrections order which were provided to me have some concerning aspects of burglaries where people are present. You are not to be repunished for these matters but deterrence and protection of the community become more elevated and your prospects of rehabilitation become dimmer.
40While your counsel submitted that I could impose a community corrections order in combination with a term of imprisonment, in the end, my view is that the only just and appropriate option is one where I allow for a period of potential parole having fixed a head sentence. The offending, and most particularly the offences against the first victim, are just too serious to permit a combined sentence.
41As the majority in the Court of Appeal decision of DPP v Reynolds[13] made clear there comes a time when a combination sentence just does not properly reflect the gravity of the crimes and the need for adequate punitive sanction. As was said in that case, only a gaol term and the fixing of a non-parole period could meet all sentencing purposes.
[13] [2022] VSCA 263 - 71 VR 336.
42That, in my view, is the case here as well. I have reached this conclusion only after anxious consideration, as to send a young man to gaol for some of what should be the best years of his life is a grave step not lightly taken, but there is no other choice. I have revisited the sentences contemplated and the orders for cumulation so as to ensure I reflect the totality of your offending, but at the same time reflecting that there were different crimes and different victims.
43Doing the best I can I impose the following sentences.
44Charge 1, the aggravated burglary, you are sentenced to three years and six months' imprisonment.
45Charge 2, recklessly causing injury, you are sentenced to 16 months' imprisonment.
46Charge 3, theft, that is the car, the iPads and the like, you are sentenced to
12 months' imprisonment.47Charge 4, the obtaining financial advantage by deception, you are sentenced to one month imprisonment.
48Charge 5, the criminal damage, 12 months' imprisonment.
49Charge 6, the criminal damage, 12 months' imprisonment.
50Charge 7, the aggravated burglary, two years and two months' imprisonment.
51Charge 8, theft, you are sentenced to two months' imprisonment.
52For driving whilst disqualified, a summary offence, you are sentenced to one month imprisonment.
53I order that eight months of Charge 2, four months of Charge 3, three months of Charge 5, three months of Charge 6, and 12 months of Charge 7 be cumulative upon each other and upon the base sentence, Charge 1. If my maths are right that gives a total effective sentence of 72 months or six years. I fix a non-parole period of three years and 10 months.
54You have already served 315 days on remand. This figure having been reckoned I now declare it is part of the sentence I have just imposed. I will make sure that this declaration is entered into the records of the court so that prison authorities are left in no doubt you have served 315 days of the sentence that I have just imposed.
55Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of eight years with a minimum term of five years.
56Is there any other orders required?
57MR MOORE: Just one moment, Your Honour.
58MR BARRERA: There needs to be a licence order, Your Honour. It's discretionary for a period Your Honour specifies. If Your Honour doesn't specify a period then it's taken to be three months.
59HIS HONOUR: Yes. I noted that the Court of Appeal has spoken about this and instead of imposing sentences of licence disqualification for five years or something, they made orders that the licence would be disqualified for a period of months, operating from the release of the offender from prison, whenever that might be.
60MR BARRERA: Yes, Your Honour.
61HIS HONOUR: Is that appropriate here?
62MR BARRERA: Yes, Your Honour.
63HIS HONOUR: Thank you. Do you agree Mr Moore?
64MR MOORE: Yes, Your Honour.
65HIS HONOUR: I order that your licences be cancelled, and you be disqualified from driving for a period of six months following your release from prison, whenever that is ordered.
66MR MOORE: Your Honour, I am also reminded that there is a disposal order for a broom handle.
67HIS HONOUR: I will make an order disposing of the broom handle.
68MR MOORE: Thank you, Your Honour.
69HIS HONOUR: Is there anything further required?
70COUNSEL: No, Your Honour.
71HIS HONOUR: I will stand down. Thank you very much for your assistance.
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