Director of Public Prosecutions v Quinlivan

[2020] VCC 325

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00369
CR-18-00370

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK QUINLIVAN
JAYDEN HARMER

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 March 2020
CASE MAY BE CITED AS:	DPP v QUINLIVAN & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 325

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  7-day Trial – Resolved by way of pleas of guilty –  Aggravated Burglary (1 charge) – Maximum penalty 25 years imprisonment.

Cases Cited:Ibbs [1981] 163 CLR 447 - Frost & Dean v The Queen [2020] VCC 1558

Sentence:Quinlivan: 6 months imprisonment with 151 days presentence detention declared as time served – Harmer: 150 days imprisonment with 150 days presentence detention declared as time served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Office of Public Prosecutions
For Accused QUINLIVAN	Mr D. Sala	Emma Turnbull Lawyers
For Accused HARMER	Mr S. Anger	Rainer Martini and Associates

HIS HONOUR:

1In this matter, Mr Quinlivan is aged 27.  He was born on 23 May 1992, he is unemployed.  He was represented in this hearing by Mr Sala and Ms Kretzenbacher.  Mr Harmer is 26, currently on WorkCover.  Mr Anger represented him. The Director of Public Prosecutions was represented by Mr Siggins.

2The trial in this matter began by way of pre-trial argument on 3 March 2020.  Mr Carter, the complainant gave evidence, which essentially as to critical events, was one of 'no recall', in marked contrast to his previous statement to the police.  The hearing was adjourned.

3Subsequent to that adjournment, the matter resolved on 10 March and both prisoners were arraigned and pleaded guilty to a new indictment, which was filed before the Court on
12 March 2020, being one charge of aggravated burglary, that indictment being C1711354.2. 

4The plea was conducted on that day.  The fact that the Parliament prescribes a maximum penalty of 25 years imprisonment is indicative of the seriousness of such offence.  Exhibit A was the plea outline agreed to by both counsel for the prisoners, as being the facts upon which I was to sentence their clients.  The basis of the plea being that on 14 July 2017, both prisoners attended the  bungalow of Jessica Lim, known to both and with whom both had socialised, for example, by previously attending Ms Lim's premises on 12 July 2017.

5The background to the crime being apparently the complainant Carter, not being happy with Quinlivan 'bad mouthing him', although to that stage they had never met.  Communications took place between Quinlivan and Carter on
13 July 2017.  At approximately 1 am that night, being 14 July 2017, the prisoners arrived at Ms Lim's bungalow and committed the crime.  That is, they both entered the bungalow without the consent of Ms Lim, with intent to assault Carter, knowing and or being reckless to persons being present in that bungalow.  Therefore, as said during the plea, the elements of aggravated burglary were pleaded to.

6It is important to note that there are in the plea and Exhibit A, no aggravating factors, which had been part of the original indictment associated with this plea.  Specifically, there is no acknowledgement of use of a knife, or of any subsequent assault after entry.  Both prisoners by their plea recant the reasons given by them both in the record of interview, as to why they were at the premises.

7As to the offending, as put by both counsel, the circumstances “tick the box” of the elements of this crime, to use Mr Sala's phrase, and both counsel submitted such crime was therefore at the lowest end of heinousness, in the manner in which the scale of heinousness is described by the High Court in Ibbs [1981] 163 CLR 447, 452. Such submission was agreed to by the prosecution.

8Further, given the lead up to the plea, and the circumstances of which I have detailed, the prosecution accepted that the plea of both prisoners was very valuable, in that:

(a)       It promoted the cause of justice.

(b)      It was utilitarian.

(c)It was indicative of true remorse and a maturity by both           prisoners, by way of their admission and importantly, the giving up of what may       well have been a very plausible defence, in the circumstances that I have described.

9In such circumstances, the prosecution accepted that the time served was sufficient in both cases.  That is, as I have detailed today, in regard to
Mr Quinlivan, four months and 28 days,  in regard to Mr Harmer, four months and 27 days.  Even without the recent guidance of the Court of Appeal in Frost & Dean v The Queen [2020] VCC 1558, clearly such sentences are unheard of for aggravated burglary, which when one compares such proposed sentences with the seriousness with which the Parliament decrees that this crime must be seen, is obvious.

10That is, given the seriousness of the crime, clearly these sentences proposed and accepted by the prosecution, are grossly out of range when you are talking about aggravated burglary.  However, the reality in this case, as I have described, is that the pleas in both instances are extremely valuable,  given the Crown case after the voir dire of the complainant, and indeed
Ms Lim the occupier of the premises, who when one reads the four statements that she has made in the depositions, was to say the least, significantly changing her stance as she progressed in her statements.

11Given those circumstances, the very unusual nature of this case is demonstrated by the fact, as put by counsel, that in this instance, the plea showed maturity given the admission where, again to use the phrase a plausible defence was given up. 

12As to Mr Quinlivan, Mr Sala tendered Exhibit Q1, his plea submissions and spoke to them.  Clearly
Mr Quinlivan, in his life has faced considerable difficulty with alcohol and relationship issues at home.  At the time of this crime, he was subject to persistent alcoholism and drugs.  It has been put while in incarceration, he has been fully abstinent, although there is no objective proof in that regard. 

13Mr Quinlivan has, unfortunately, been able to attain limited help in overcoming such addictions while in prison, because subsequent to this offending, due to the failure of Mr Quinlivan to appropriately manage his own physical injuries, he unfortunately suffered a leg amputation owing to infection of his leg.  Mr Sala submitted, given his attestation of not being involved with drugs and doing as best he can in prison that I should be positive about his future rehabilitation. It seems to me that I should not accept that.  I do not in any way want to discourage Mr Quinlivan, however, I think the future as to his rehabilitation must be seen as guarded.

14Mr Quinlivan is currently, I am advised by Mr Sala, on remand for a robbery charge, which was committed subsequently, not only to these crimes, but to him having surgery.  I am further told that he intends to plead guilty in regard to that charge.  It was submitted that any period in gaol, obviously because of his now physical condition, has been far more onerous than would be normally endured by persons in prison, not only the difficulties of getting about, but as is obvious, he has been unable to attend various programs designed to assist in the very issues that the bedevil him through his life.  Insofar as his priors, they are significant, albeit aged, but it is of some note that he has not been sentenced to gaol prior to this time. 

15Mr Harmer's priors are also aged, however significant and he has had at least two significant terms of imprisonment in youth training.  I accept the proposition put by Mr Sala on the basis of priors only, that there is no basis as a result of those priors for me to draw any difference as to parity of sentencing. 

16However, there is in my view, a clear difference in the roles played by Mr Quinlivan and Mr Harmer, and that difference does lead in my view, to a need for a sentence which discriminates their roles. Mr Quinlivan is the person who provides the background and motive for this crime.  I do not particularly know why, but certainly he had the emotional issues behind this, the desire to assault Mr Carter, and had had words with Carter over the social network.  Harmer apparently had simply accompanied him, in order to achieve this task.

17In regard to Mr Harmer, Mr Anger tendered Exhibit H1 by way of submissions and spoke to those.  Mr Harmer has an excellent work history, unfortunately cut short by an accident I think in the scaffolding industry and he has been subject to the receipt of workers compensation since that time.  He has a partner of some five years, with whom he has currently has an 11 month old child and a child on the way. 

18Insofar as Mr Harmer was concerned, also tendered on the plea was Exhibit H2, which was his attendance at the CISP Program.  That shows an active and open response to that program.  It was seen as a positive report and again, reported in that document is that he was allegedly drug free.  Again, one hopes that that is so, because the reality clearly is that drugs must have been behind these crimes. 

19The circumstances leading to this plea, as I have said, must be seen as exceptional and unusual and it is in those circumstances that I propose to pass the following sentences. Mr Quinlivan, Mr Harmer if you would stand up please.

20Mr Quinlivan, you will be convicted of this crime and sentenced to a period of six months gaol.  Mr Harmer, you will be convicted and sentenced to a period of four months and 27 days, which amounts I am told to 150 days.  I have also signed a disposal order.  In regard to Mr Quinlivan, pursuant to s.18, I declare that the 151 days served to date by way of pre-sentence detention, as agreed by counsel today, forms part of this sentence and a declaration to that effect is to be recorded in this court.  I am not quite certain, but 151 days is not too far off six months.

21MR SALA:  No there's about a month left.

22HIS HONOUR:  I'm not quite certain what that works out to, but you no doubt will work that out Mr Sala with ‑ ‑ ‑

23MR SALA:  About a month.

24HIS HONOUR:  ‑ ‑ ‑ your mathematical expertise and of course, this is an administrative matter as well.  So I just - we do not know that.  But effectively Mr Quinlivan, it will not take you long to finalise this sentence. 

25Insofar as Mr Harmer is concerned, I also declare pursuant to s.18 the 150 days as service of this sentence.  The effect of that will mean Mr Harmer that you will not be required to serve any further gaol and provided that there is no reason why he cannot walk free from the dock as he has been on bail Mr Anger to this time has he not?

26MR ANGER:  Yes, Your Honour.

27HIS HONOUR:  Yes.  As I said, I have signed a disposal order.  Is there any other matters I need to attend to?

28MR SALA:  No, Your Honour.

29MR ANGER:  No, Your Honour.

30MS SINGH:  Section 6AAA declarations, Your Honour.

31HIS HONOUR:  Yes, that is right.  This I think is one of the cases that I simply cannot comply with the requirements of the Parliament.  The impact of the plea of guilty is obviously important.  However, that is not the fundamental factor in this case.  The fundamental factor is the unusual and exceptional circumstances and the recommendation of the Crown.  I just do not see how I can appropriately ascribe the effect of pleading guilty in this matter any further than I have.  Certainly the answer would have been you certainly would not have got these sentences and particularly from me, if I need to emphasise that, as you remarked in your plea, Mr Sala. 

32Yes, well I thank all counsel for their assistance in the matter.  There were some particularly exquisite issues in the matter and I thank counsel for their assistance.

33MR SALA:  No 500 page decisions from the High Court this time, Your Honour.

34HIS HONOUR:  No, that is true.  Mr Quinlivan, Mr Harmer as I have said, your experience of gaol has been very limited.  It is very important that you take the opportunity to make sure that you do not come back here again, all right?  Yes.

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