Director of Public Prosecutions v Rhodes

[2019] VCC 587

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00266

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE RHODES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	30 April 2019
DATE OF SENTENCE:	30 April 2019
CASE MAY BE CITED AS:	DPP v Rhodes
MEDIUM NEUTRAL CITATION:	[2019] VCC 587

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew	Office of Public Prosecutions
For the Accused	Mr P. Murphy	Warren Graham & Muprhy Pty Ltd

HIS HONOUR:

1Kyle David Rhodes, you have pleaded guilty on an indictment to one charge of aggravated burglary and one charge of damaging property.  Those crimes carry maximum penalties of 25 years and 10 years' imprisonment, respectively.

2You also pleaded guilty to two uplifted summary matters, one of fail to appear and one of offending whilst on bail.  On each of those charges you are convicted and sentenced to be imprisoned for a period of seven days, which I direct be served concurrently with the other sentence that I am about to impose.

3You are now 22 years of age and you were 20 years of age at the time of the offending.  The offending occurred now some significant time ago and I take into account the concept of delay.

4You pleaded guilty at a reasonably early opportunity, within limitations you have expressed appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty.

5The situation is that you are still a very young offender, effectively, and this is your first time in prison.  You do have a number of matters where you have been found guilty previously, but I note, looking at your prior history, that the bulk are in the Children's Court and in fact you appear before me with no prior convictions as such at all.

6The circumstances of this offending are that you have a very checkered history, with a somewhat dysfunctional childhood.  But in any event, a
Mr Kieran McKergow had been in a relationship of a relatively short duration with your mother.  You were 20 years of age.  There is clearly a level of difficulty between you and Mr McKergow, which I have no intention of going in here.  Those matters were discussed obliquely, albeit, in the sentencing conversation in the Koori Court, and I am sure that Corrections are aware and will endeavour to assist you.  But in any event, I have no doubt that you have a grudge to bear, of sorts, against Mr McKergow.

7On 8 October, he was in his house at 30 Scott Street in Orbost.  He was woken by the sound of breaking glass at about 2.20 am, went to the front window, saw somebody outside not wearing a shirt.  That person said, 'Come out here, I'll kill ya', that apparently was you.  He also saw a small car or motorcycle battery on the floor, where the side gate had been kicked in, then saw the back door open.  That was you.  You entered the premises for a distance of about a metre, a dog barked and you left.

8The door was locked after you.  According to the complainant you tried to open the locked door again but could not, and broke a window.  You went to the front of the house, 'Come out and I'll kill ya.  Gonna burn your house down, I'll slit your dog's throat, I'll total your car'.  That compendium of threats was repeated a number of times.

9Police eventually arrived and arrested you and took you into custody.  It was pretty clear that you had been drinking heavily and were intoxicated and it is in those circumstances that it occurred.  Your memory when you were speaking to police would appear sketchy, but you certainly made admissions and you have to get the benefit of that.

10I have before me a victim impact statement, which I have taken to account.  Obviously, one of the major aspects of aggravated burglary is that they can escalate into extreme dangerous situations and accordingly a court must always treat it seriously and look to the application of general and specific deterrence, as well as denunciation and appropriate punishment.

11In your particular situation the nature of the entry and the duration of it was very short, indeed, you were not carrying a weapon, and accordingly I regard it at the lower end of this type of offending.  The criminal damage relates to the windows and the like, around about $1,000 worth and, again, in the normal course of events would have been dealt with in a Magistrates' Court with a non-custodial disposition, I would have thought.

12You participated in Koori Court and I thought spoke very well with the elders.  You displayed your concern about all this, you seemed very anxious to me in this courtroom environment and I am sure that the period of time that you have already spent in prison, that being some 83 days, has had a very salutary effect upon you.

13You are in a position where you have a small child, you have a partner, you have stable accommodation to go to.  You have in the past worked and there is no reason why you should not be able to work again in the future.  You now appear to at least to be in a situation where you understand your parental responsibilities and endeavour to try and do something about it.

14Obviously, the matter having been in Koori Court, you are an Aboriginal man and as each of the elders pointed out to you it is time to, effectively, grow up, deal with your internal problems and be a strong Aboriginal person.

15Your history is that you are Aboriginal through your mother's side.  She was known as were further relatives to each of the elders and I know you became distressed when Auntie Di spoke about your grandmother.  You have maintained to a level, certain level, your Aboriginal cultural history and it has been again pointed out to you today that is going to be very important.

16Your circumstances were that your parents separated at a relatively young age, you spend a considerable amount of time with your father and have on occasions gone back Orbost and lived with your mother.  It is quite clear again from listening to the elders, who know your family well, that there has been real difficulties with your mother over the years and you were in a difficult situation.

17It appears, from what I am told, that when you have been with your father and your stepmother, who spoke well on your behalf in court today, that you perform pretty well.  When you go home to Orbost with Mum and the distractions and the peer group that exists there you seem to fall in a hole.  You are aware of that.  You intend upon your release to reside in Traralgon with your father and stepmother and, as I understand it, two stepsiblings, and that is all to the benefit.

18I do not see any real need to go into the background of all this anymore, it was all canvassed this morning and cases such as Bugmy and the like obviously play a part.

19The prospects of your rehabilitation, if you can look after yourself properly, should be pretty good.  If you drink and if you use drugs the risk of you reoffending is going to increase.  Certainly, to a moderate level at least.  At the moment, I think you are sufficiently motivated that it should be low if you can abide by the conditions that will be imposed upon you.

20You have now been in custody for a period of 83 days.  That, I did not realise at the time that the sentencing hearing was taking place was running concurrently with remand on some Magistrates' Court matters.  I indicated I was going to give you 83 days' imprisonment, to be followed by a community corrections order if you were found to be acceptable.  You have been found to be acceptable.

21What I am going to do in this situation is we have got Magistrates' Court, which as I understand is a breach of a community corrections order coming on in a couple weeks' time.  The sentence I impose will be 75 days, that gives a magistrate an opportunity to give you what effectively would have been the equivalent of concurrency.  Be it only eight days or so, but with the time frame that exists between now and the Magistrates' Court hearing, where it is simply a breach of a community corrections order, that may well give the magistrate sufficient gaol time to play with, in terms of the imposition of a punishment.  That, of course, is totally a matter for the magistrate.

22Again, I do not think there is really need to go into much more detail about all this.  You are a young man, your life is still in front of you; you have got everything going for you.  Get your act together, not use drugs, control your anger and do not abuse alcohol.  All a pretty big ask, but I think that you have certainly today displayed a determination that you really want to do that and you clearly have got a lot of support people who can assist you in doing so.

23That is not decrying the fear and trepidation that the victim in this matter would have felt, but I think the gaol time that you have done sufficient for punishment and the community corrections order, which I am going to impose, is primarily for treatment.

24Counsel have had the opportunity of looking at the community corrections order report and accordingly I am going to put you on a community correction order, with conviction, which is a punishment in itself.

25You will be sentenced to 75 days' imprisonment on the charges of aggravated burglary.  That is an aggregate of 75 days of aggravated burglary and criminal damage and a community corrections order will follow those two charges.  A community corrections order is not on the summary matters, because in that situation I have to give two quite distinct community corrections order and it would just be ridiculous in this situation.

26So, accordingly, if you agree, the community corrections order with conviction, two years duration.  Incorporated in that will be treatment and rehabilitation for drugs and for alcohol, with mental health assessment and treatment, and Corrections are well aware what is meant by that in your situation.  As well as offending behaviour programs which, again, may assist, but also be subject to supervision.

27I am not going to impose work hours, you have done the time in gaol and I think work hours for you would be gratuitous and there is also the risk that you would be coming into contact people I would rather you did not come into contact with if you were doing them.

28Accordingly, that sentence imposed, I direct that 75 days be reckoned as having been served under this sentence and I understand that you will now be returned to remand.

29Insofar as s.6AAA is concerned, I simply say that but for your plea of guilty, would have sentenced you to be imprisoned for a period of six months with a similar community corrections order, if you agree, and I think you will.

30Perhaps I have made a mistake.  Jason, the mental health, did you want offending behaviour programs rather than mental health, did you?  I might have misread what is ‑ ‑ ‑

31UNIDENTIFIED SPEAKER:  Your Honour, mental health was something that I wasn't sure.  I had - when I started writing it I intended that it would be the ‑ ‑ ‑

32HIS HONOUR:  Well, with what we were talking about at the table, do you need mental health to deal with that or was it offending behaviour programs?

33UNIDENTIFIED SPEAKER:  Offending behaviour programs is probably the most appropriate.

34HIS HONOUR:  All right, well ‑ ‑ ‑

35UNIDENTIFIED SPEAKER:  We can always make a referral for mental health ‑ ‑ ‑

36HIS HONOUR:  If you want to?

37UNIDENTIFIED SPEAKER: ‑ ‑ ‑ treatment under the supervision condition (indistinct words.)

38HIS HONOUR:  All right.  All right, well, I take the mental health one out then.

39UNIDENTIFIED SPEAKER:  Thank you, Your Honour.

40HIS HONOUR:  Yes, all right.  If you would not mind going down with my associate while it gets signed, please, Mr Murphy.  You are not prosecuting that Commonwealth matter tomorrow, are you?  Is someone else?

41MR LEW:  It will be somebody else, Your Honour, yes.

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