Director of Public Prosecutions v Rooney
[2016] VCC 1822
•29 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01510
Indictment No. G10925465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON ROBERT ROONEY |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 November 2016 |
| DATE OF SENTENCE: | 29 November 2016 |
| CASE MAY BE CITED AS: | DPP v Rooney |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1822 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dishonestly handle stolen goods – aggravated burglary – theft – drive whilst authorisation suspended – drive in a manner dangerous
Legislation Cited: Crimes Act 1958, s88, s77(1), s74; Road Safety Act 1986, s30(1); s64(2A), Sentencing Act 1991
Cases Cited:DPP v Rooney [2015] VCC 717
Sentence:Total effective sentence of 4 years’ and one month’s imprisonment. Three years of the sentence to be served cumulatively with the current term of imprisonment. New minimum parole period of 2 years and 6 months fixed. Total of $1,250 in fines. Disqualified from obtaining a drivers licence for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Sherwood | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms B Franjic | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
The charges
1 Brandon Robert Rooney, you have pleaded guilty to the following:
·Dishonestly handle stolen property, an electric garage remote-control, contrary to s88 of the Crimes Act 1958, carrying a maximum penalty of 15 years’ imprisonment.
·Aggravated burglary contrary to s77(1) of the Crimes Act 1958, carrying a maximum penalty of 25 years’ imprisonment.
·Theft of a laptop computer, three pairs of sunglasses, three pairs of shoes, two credit cards and money contrary to s74 of the Crimes Act 1958, carrying a maximum penalty of ten years’ imprisonment.
·Theft of a Mercedes Benz car and a BMW car contrary to s74 of the Crimes Act 1958, carrying a maximum penalty of ten years’ imprisonment.
·Driving whilst suspended contrary to s30(1) of the Road Safety Act 1986, carrying a maximum penalty of 30 penalty units or four months’ imprisonment for a first offence.
·Driving in a manner dangerous contrary to s64(2A) of the Road Safety Act 1986, carrying a maximum penalty of 120 penalty units or 12 months’ imprisonment.
Your previous offending
2 You have a relevant prior criminal history:
·On 17 December 2014, you were dealt with for theft of a motorcar, theft from a shop, commit an indictable offence whilst on bail, and another offence of theft, among other offences. You were dealt with very leniently.
·On 26 May 2015, you were dealt with for resisting an emergency worker on duty and throwing a missile. You were again dealt with very leniently.
·On 2 March 2016, you were dealt with for graffiting property, dishonestly receiving stolen goods and possession and use of methylamphetamine. On that occasion, you were not dealt with so leniently, you were convicted and fined $1,500.
3 Whilst this prior criminal history is not particularly significant in the context of the charges for which you were re-sentenced, they nonetheless show that you were oblivious to your obligation to obey the law. What is of greater relevance are the two subsequent aggravated burglaries and thefts you committed for which you were sentenced by Judge Pullen in this Court.
4 You were dealt with for two counts of aggravated burglary and two counts of theft. You pleaded guilty. You were sentenced by Judge Pullen on 28 May 2015 to an aggregate term of imprisonment of four months, after which you were released on a community correction order for a period of three years with a number of conditions. One of those conditions was that you perform 300 hours of unpaid community work over a period of 18 months.
5 I have read the lengthy Reasons for Sentence of Judge Pullen.[1] The first aggravated burglary occurred on 21 March 2014. You were in company with two co-offenders. You were armed with a crowbar and your co-offenders were armed with an imitation firearm and a large torch. You entered a house and confronted the two occupants of the house.
[1]DPP v Rooney [2015] VCC 717, Case No. CR-15-00545
6 You committed the next aggravated burglary on 9 May 2014. You were in company with a co-offender. You entered a house, confronted the occupant of the house and threatened him with violence if he resisted. While your co-offender stood guard over the occupant, you ransacked the house.
7 On both occasions you and your co-offender stole property belonging to the occupants of those houses.
8 I note that Judge Pullen gave you a very stern warning that if you committed any further offences which might incur a term of imprisonment, that you would be brought back before her and you would be sentenced to a term of imprisonment.
9 The plea that was made on your behalf was very extensive; it emphasised your youth and your prospects of rehabilitation.
10 You ignored the warning Her Honour gave you. After you served the sentence of four months’ imprisonment, you failed to meet the straightforward demands of the community correction order, with the result that you appeared before her Honour and were re-sentenced. By the time you appeared before her Honour, you had been remanded in custody. Your counsel on that occasion again emphasised your youth and prospects of rehabilitation, and you pointed to the progress you had made within the prison system as a demonstration of your prospects of rehabilitation.
11 I note that counsel who appeared for you on that occasion described your prospects of rehabilitation as being “fair”. Her Honour said that she did not have quite the same confidence, that it could be put that high, but she was obviously concerned to pay due regard to your age and need for rehabilitation. Her Honour re-sentenced you to an effective sentence of thirteen months’ imprisonment with a minimum term of seven months before you would become eligible for parole.
12 The foregoing becomes relevant to the plea put on your behalf on this occasion because of the emphasis again placed on your youth and prospects of rehabilitation, and again, reliance was placed on your progress through the prison system as a demonstration of your prospects of rehabilitation.
13 For reasons which will become obvious shortly, your reliance on your youth and your prospects of rehabilitation now have reduced persuasive value, because it is the third time that submissions based upon those two factors have been made.
Your offending
14 On 2 April 2016, somewhere between midnight and 6.00am, you and a co-offender entered a house in Balwyn. You gained entry to the house using a stolen garage remote control which you had obtained some two days earlier. This constitutes the charge of handling stolen goods.
15 You and your co-offender entered the kitchen. This constitutes the charge of aggravated burglary. You stole two handbags, a laptop computer, the keys to two cars and other items of personal property, with a combined value of $11,595. This constitutes the charge of theft.
16 You and your co-offender stole a Mercedes Benz car and a BMW car, which had a combined value of $97,177. This constitutes the further charge of theft.
17 At the time you and your co-offender entered the house at Balwyn, an adult male and an adult female, who are husband and wife, were asleep upstairs, as was their daughter.
18 At about 1.00am on 4 April 2016, the BMW car was recovered in Preston. It had been abandoned after being involved in a collision with a truck.
19 At about 3.00pm on 5 April 2016, you were observed by police who were performing patrol duties in the Northcote area, driving the Mercedes Benz car. You were driving that car at a fast rate of speed. The police took up a position behind you. You turned right against a red traffic control signal. You drove the vehicle onto a concrete median strip and across the relevant carriageway in order to travel west on the wrong side of the road. It was then that the police activated the emergency lights on their car.
20 You drove the Mercedes Benz car into a side street. As you did so, you struck the passenger side front panel of a Mitsubishi sedan, which resulted in extensive damage to both cars. You walked away from the scene of the collision, but returned when summoned by the police. You had two young women in the Mercedes Benz car who were removed from the scene of the collision and taken to a hospital for observation as a precaution.
21 You were taken to the Northcote Police Station where a formal record of interview was conducted. You made no comment during the interview. You were subsequently remanded in custody.
Your plea
22 Your counsel, in a very well prepared plea, submitted that there are a number of matters which I should weigh into the balance in sentencing you.
23 Firstly, you are 22 years of age; the sentencing remarks of Judge Pullen on both occasions, and the history taken by Mr Mackinnon, psychologist. The reference provided by your mother and your own letter to me describe the serious difficulties you have encountered during your early life.
24 You were born in New Zealand. You are the eldest of four children. Your mother and father separated in 2002. Your mother moved back to New Zealand with you and your siblings. Your mother and father reconciled for some time, but separated permanently in October 2005.
25 You were adversely affected by the break-up of your parents’ marriage. You decided to live with your father when you were 12 years of age in New Zealand, despite your mother’s misgivings about that. Your mother describes your father as unstable and having a history of violence towards women. Furthermore, she considered him to be a bad influence over you.
26 From about the age of 12, until you were arrested and charged with the offences for which you were initially sentenced by Judge Pullen, you moved between living with your mother and father and living in New Zealand and Australia, and when in Australia, between Queensland and Victoria.
27 According to your mother, you were getting into trouble while you were in New Zealand. She understood that when you were living with your father in Queensland, he had turned you out of the house on a number of occasions, which resulted in you being homeless. She understood that you were using ice.
28 You returned to Victoria and resumed living with your mother, her second husband and your siblings. However, there appear to be two factors which then adversely impacted upon you – the first was the break-up of your relationship with your then girlfriend and her miscarriage of your child, and, secondly, your drug use. It was your drug use and the people with whom you were associating with which forced your mother to turn you out of her house.
29 You appear to have gained some control over your life after you were arrested for the offences for which you were initially sentenced by Judge Pullen. You were heading toward an apprenticeship as a spray painter.
30 Your counsel referred me to the letter of your present girlfriend, Holly Hawkins, dated 14 November 2016, the reference from her father, Wayne Hawkins, dated 17 November 2016 and the reference of Troy Crellin, who is the program manager of Social Enterprise Service Delivery. He gave evidence of the steps you have taken to commence an apprenticeship as a spray painter with Synergy Auto Repairs, which is a social enterprise established through partnership with a number of organisations to give young people like you a chance to develop trade skills, a positive outlook on life and hopefully a successful career. His reference, which is undated, and his oral evidence, demonstrate his confidence that you have achieved enough for you to be supported by him and his organisation to re-enter an apprenticeship and be supported in your completion of it.
31 Holly Hawkins is obviously committed to you, as is her father. The difficulties which you have had finding a suitable place to live will be solved by them. They will provide you with stable accommodation, and it is the joint intention of Ms Hawkins and yourself to cohabit in a relationship to which you are both committed.
32 Your counsel submitted that the immediate problem you faced after you served the four-month term of imprisonment was that you could not live in the home of your mother. This was because there were six adults living in that house which made the accommodation unsuitable when you were added to the number of people living there. As a result, you couch surfed and found yourself drifting into bad company and ignoring your obligation to apply yourself strictly to the conditions attached to the community correction Order.
33 Mr Mackinnon examined you on 30 September 2016. He obtained an extensive history from you regarding your background and your substance abuse. He diagnosed you as having a Depressed Mood Disorder and a Poly-substance Abuse Disorder. While you have been in custody you have been prescribed Zoloft, which is an anti-depressant, and you have been free from the influence of illicit substances. Your counsel informed me that you believe you need an increased dosage because your anxiety and depression are not under the level of control you believe can be achieved. It would appear that you have developed some reasonable insight into the need to care for your mental health.
34 Your counsel submitted that the evidence I have just summarised will provide you with the stability you must have to give you the best chance of not falling back into your offending conduct. You will have the stability of your relationship with Ms Hawkins and her commitment, and that of her father. You will have the support of Mr Crellin and his organisation, with the return to an apprenticeship available to you.
35 Additionally, it was submitted that you have made the best of your time while in prison, and that appears to be so, because you have engaged in a number of courses relevant to you examining your offending conduct and your attitude to the use of illicit drugs. Lastly, you now have a measure of control over your psychiatric problem which will assist you in resuming a normal life and pursuing the objectives that you have in mind.
36 I will now turn to the least controversial aspects of the plea made on your behalf.
37 Firstly, I accept that you are remorseful. You composed a letter directed to me which contains an insight into your offending conduct, what you need to do to avoid offending conduct of this kind again and the realisation of the damage which conduct of this kind causes to decent, law-abiding members of our community.
38 Secondly, your plea of guilty has a utilitarian benefit, in that the victims have been spared a trial, and in particular, the trauma that is likely to be associated with your victims giving evidence. Additionally, the State has been spared the cost of a trial.
39 Each of these factors must go to moderating the sentence that I must impose on you.
40 The controversial aspect to the plea made on your behalf are the reliance on your youth and your prospects of rehabilitation. I have already made the observation that this is the third time a plea has been made based upon those two factors.
41 There must come a time when reliance on mitigating factors becomes less compelling and useful when seen in the context of re-offending. It is clear to me that when Judge Pullen sentenced you initially, she was persuaded that the sentence should be significantly moderated by your youth and prospects of rehabilitation. However, it is clear that when you were re-sentenced by her Honour, that her Honour was less persuaded by both of those factors.
42 You may well have had time on your hands while in prison to ask yourself why you are here and what you would do if you had your time over again, but there comes a time when you must be brought fully to account for your criminal conduct. I will make it clear to you that your youth and prospects of rehabilitation are relevant but significantly less so because your record now demonstrates that you have thought nothing of the leniency shown to you.
Sentencing principles
43 Your criminal history, together with the serious nature of your offending, results in the sentencing principles of specific deterrence, general deterrence, denunciation and protection of the community becoming dominant. The importance of your personal circumstances should never be under-estimated, nor should your youth nor your prospects of rehabilitation. However, your personal circumstances cannot overwhelm the seriousness of your offending conduct, and as I have made clear now on a number of occasions, I do not consider that your youth deserves the emphasis submitted by your counsel, and as for your prospects of rehabilitation, I am not convinced that they are nearly as positive or as good as submitted by your counsel. I hesitate in saying that you do have some prospects of rehabilitation but I think those prospects are guarded, at best.
44 What you and your co-offender did was serious on any view. You had no hesitation in breaking into the home of ordinary law-abiding people in the middle of the night. You had no hesitation in stealing whatever of their property you could find. You had no hesitation in stealing their cars. It was fortunate that they remained asleep while you and your co-offender helped yourself to their personal belongings and their cars. You damaged both of their cars. Both cars were involved in significant car accidents, resulting in a very large damages bill which is the subject of a claim for compensation, and I will return to this later.
45 Every occupant of a home deserves to have the certainty of safety, security and comfort in their own home, and not to have that trashed by people like you. Our senior courts have now emphasised that the sentences which should be imposed on people like you for conduct like this should be stern. However, I do take into account that there were a number of features of the aggravated burglary which distinguished it on its facts from the more serious examples of aggravated burglary – although you were in company, your intention was to steal and not to engage in a confrontational aggravated burglary armed with weapons.
46 The damage you caused to the adult male and female and the child in that house resonates in the adult female’s Victim Impact Statement. It is sad to read the results of what you and your co-offender did. The adult male and female spent a lot of money securing their home in order to prevent an event like this happening again. Eventually, they moved to a new home. The adult female is suffering from depression. She is undergoing psychiatric treatment. She does not trust people she meets and is paranoid to the extent that she ensures that doors are locked behind her. My summary of the words that she has written are probably an under-statement of the impact this has had on her and her family.
47 I am in little doubt that the combination of what you did on this occasion and your criminal history demonstrate that you must be sentenced to an immediate term of imprisonment and the sentence should be stern.
48 I have paid due regard to the plea made on your behalf by your counsel and to the factors which I consider are relevant in sentencing you. The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.
49 I would now ask you to stand please.
50 On the count of aggravated burglary, you are sentenced to three (3) years’ imprisonment. This will be the head sentence.
51 On the count of theft of the Mercedes Benz car and the BMW car, you are sentenced to twelve (12) months’ imprisonment with nine (9) months to be served cumulatively with the head sentence.
52 On the count of dishonestly handle stolen property, namely the electric garage remote-control, you are sentenced to three (3) months’ imprisonment with one (1) month to be served cumulatively with the head sentence.
53 On the count of theft of a laptop computer and other items, you are sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the head sentence.
54 On the count of driving whilst suspended, you are fined $500.
55 On the count of driving in a manner dangerous, you are fined $750.
56 Any licence you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence for eighteen (18) months from today’s date.
57 The total effective sentence, apart from the fines, is four (4) years and one month’s imprisonment.
58 I must consider the principle of totality by having regard to the sentence imposed on you by Judge Pullen. I order that three (3) years of the sentence be served cumulatively with the sentence imposed by her Honour, which is a total effective sentence of four (4) years and one (1) month. I must also fix a new minimum sentence before you will become eligible for parole. I will fix the new minimum at two (2) years and nine (9) months. You now may be seated.
59 Applications have been made by the prosecution for compensation orders pursuant to s86 of the Sentencing Act 1991. I will make those orders.
60 The first order is for $5,891.97 in favour of the Australian Associated Motor Insurers Ltd of 601 St Kilda Road, Melbourne. The second order is for $74,042.75 in favour of CGU Insurance Ltd of 181 William Street, Melbourne.
61 I order the 120 days of pre-sentence detention be reckoned as time served under this sentence. I will have that noted in the records of the Court.
62 Pursuant to s6AAA of the Sentencing Act 1991, if it were not for your pleas of guilty, I would have sentenced you to an effective term of imprisonment, after ordering appropriate cumulation of six years with a minimum, before you would become eligible for parole, of four years.
63 Is there anything else?
64 MR SHERWOOD: Your Honour, I apologise for the lateness of this submission but I noticed this morning that there is a – the mobile phone which was used initially to send the text messages is mentioned as an exhibit in the brief. I wasn’t able to obtain instructions from the informant this morning; however, it may be that a disposal is required. Quite commonly, unless a disposal is not, other arrangements are made. What I suggest, Your Honour, is if we could just place on the record that that order is consented to, and if it is ultimately required, I could follow up by forwarding the order to your associate. I have mentioned the matter to Ms Franjic. I understand she wants to make a brief submission on that.
65 MS FRANJIC: That would be consented to, Your Honour, subject to my client or a family member getting access to take off personal photographs and files. It’s quite common for that to occur and arrangements can be made with the informant prior to destruction of the phone. I just wanted to put that on the record.
66 HIS HONOUR: I will leave it on this basis: if an application is made, I will expect that you will do what is necessary to retrieve that information and if there are any other submissions to be made by either of you, you can do that by email directed to my principal associate.
67 MS FRANJIC: As Your Honour pleases.
68 HIS HONOUR: Yes, you can remove Mr Rooney please.
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