Director of Public Prosecutions v Rooney
[2016] VCC 1202
•18 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00545
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON ROONEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2016 | |
DATE OF SENTENCE: | 18 August 2016 | |
CASE MAY BE CITED AS: | DPP v Rooney | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1202 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms E. Tueno | Office of Public Prosecutions |
| For the Accused | Mr M. Brennan | Emma Turnbull Solicitors |
HER HONOUR:
1 Brandon Rooney, you have admitted through your counsel breaching a Community Corrections Order imposed by me on 28 May 2015. Before me was a report from Corrections Officer, Nicole Talarno, referable to that breach.
2 I originally sentenced you for offending involving two charges of aggravated burglary and two charges of theft to an aggregate four months’ imprisonment then to be released on a Community Corrections Order for a period of three years. A number of conditions were attached to the order, referred to within my sentencing remarks of 28 May 2015. No pre-sentence detention was declared at that hearing.
3 The Breach Report prepared by Nicole Talarno, leading community corrections officer, Carlton Community Correctional Services, outlines your breaches of that Order.
4
There were numerous unacceptable absences from community work on 24 October 2015, 31 October 2015 and 7 November 2015, and unacceptable absences from treatment and rehabilitation programs on 9 November 2015,
10 November 2015, 2 December 2015, 11 December 2015, 23 December 2015, 26 February 2016 as well as 7 March 2016 and 29 March 2016. You also failed to attend for supervision with unacceptable absences on 2 February 2016,
4 February 2016, 15 February 2016, 24 February 2016, 25 February 2016,
1 March 2016, 9 March 2016 and 22 March 2016. You also had an unacceptable absence from programs on 21 January 2016.
5
I was also told that since you had been in the community following serving four months’ imprisonment, you are remanded in custody for other offences yet to be dealt with. In addition, as I understood, it was alleged you have committed offences on 4 March 2016 involving dishonesty matters and offending alleged on 20 January 2016 involving, amongst others, reckless conduct. As I understand it and confirm today, those charges are yet to be determined. I was told, however, of further offending by you alleged between 1 and 4 April 2016. It was intended that you would be pleading guilty to a charge of aggravated burglary. While that offence is currently in the committal ‘stream’, your counsel indicated you would be seeking summary jurisdiction of the matter and pleading guilty to it. As I understood it, the hearing of that offence was to occur on
11 August 2016, shortly after your plea hearing before me. Since then, things have changed in that regard and it is not before me.
6 The breach before me, I note, relates to conditions of a Community Correction Order and further offending, do not form the basis of this breach. However, I do note given your intended application for summary jurisdiction of that offence of aggravated burglary, you would be pleading guilty to it. That did occur during the course of your Community Corrections Order and would appear to have resulted in you being remanded in custody on those matters from 5 April 2016. Your compliance with the Community Corrections Order beyond that date was obviously then impossible.
7 I discussed with your counsel, Mr Brennan, aspects of my original sentencing remarks of 28 May 2015. Those sentencing remarks should be read in conjunction with the sentence imposed for the breaching offence before me as I will re-sentence for those offences.
8
Also placed before me by the prosecution was an updated copy of your criminal record. Again, I note from that record, at the time I sentenced you on 28 May 2015, you did not have any prior criminal history although, relevant to your rehabilitation prospects at that time, by the time of my then sentence you had been dealt with for offences that had occurred subsequently involving theft from your mother and stepfather, in addition to some other charges, including breaching a condition of bail, damaging property and unlawful assault, for which you were subsequently sentenced. As I said at the time I sentenced you on
28 May 2015, such being relevant in assessing your rehabilitation prospects.
9 I discussed in some detail with your counsel, Mr Brennan, your unacceptable absences from various components of your order, as detailed within the charge and summons and report of Ms Talarno. Mr Brennan submitted that at the time of you failing to attend, you were effectively homeless. I note, however, that your failures to attend were interspersed with appointments you did keep. In other words, you were still maintaining contact with Corrections in addition to your unacceptable absences.
10 I also noted, and discussed with your counsel, that you attended your induction onto the Order, as required within two days of your release from the four month sentence, and at that induction you expressed your willingness to comply with conditions of the Order.
11 Mr Brennan discussed your failure to attend for work requesting light duties, and being homeless, the latter resulted in your discharge from community work. You did not complete any community hours.
12 Mr Brennan submitted you were still a young person who had struggled with homelessness since release from custody. He conceded, however, that your drug use continued. Your drug use was of concern to me also as at 28 May 2015, as my sentencing remarks will reveal.
13 Mr Brennan referred to you still being a young offender when re-sentenced for these charges, and I have not lost sight of that. Further, Mr Brennan submitted that you did not have any prior court appearances, again, a matter of which I am aware.
14 Mr Brennan submitted that you now had supports in the community. I discussed with him, however, that it was clear, and he conceded, that you had youth justice supports to which I referred extensively in my sentencing remarks.
15 As I understood, Mr Brennan submitted the Correction Order was much less intensive and you struggled in the community, relapsing into drug use.
16 Mr Brennan said you now had somewhere to live, and I discussed this at length with him and, in particular, the enormous amount of support that you had prior to your incarceration and opportunities of assistance beyond that.
17 Mr Brennan submitted you were motivated to complete a further Community Corrections Order if I was minded to impose such, and I discussed that at some length with him. Mr Brennan’s secondary submission, without abandoning his primary submission, was that a longer period on parole would give you an opportunity to utilise that assistance when released into the community. Although he conceded you had not ‘done your prospects of rehabilitation any favours’ by further offending.
18 As part of the plea material, a number of documents were provided, and I discussed those with him. There was a reference from Jesse Sullivan, music studio co-ordinator at Artful Dodgers Studios, undated. I was aware of your involvement with the Artful Dodgers at the time I sentenced you in May 2015. The author referred to your regular attendance at the studio sessions between 2014 and 2015, and being enthusiastic about your music talents. At that time, you were demonstrating a lot of potential and had expressed a positive energy around the music community and wanted to contribute to that.
19 From Kangan Institute there was a Certificate II in Construction Pathways, completed by you most recently on remand.
20 I was also provided with documentation from Narcotics Anonymous which indicated that also during your current remand you had attended Narcotics Anonymous on two occasions in July 2016. I encourage you to maintain that contact.
21 There was correspondence from your mother, Andrea Rooney, dated 29 July 2016, in which she referred to your background and history. I have read her letter and also note my reference to your background and history is contained within the sentencing remarks of May 2015. She noted that when you were sentenced and served your four months at Dhurringile Prison, you were without the influence of drugs and turned back into the son “that I loved”. However, upon your discharge from Dhurringile Prison, she believed you did not have the necessary supports.
22 As I discussed with your counsel, as an aside, there would appear to be a lack of understanding relevant to the supports offered through Community Corrections Orders. Ultimately, you were given many opportunities to participate and comply with the Order and to participate in a number of programs and conditions, but you failed to do so.
23 There is no doubt that your mother remains concerned about your drug use and your involvement in criminality as a result. That is an understandable concern. But ultimately, you know the impact of the drug use upon you, and you are the only one who can address it.
24 Also before me was a letter from your partner, Ms Holly Hawkins, dated 29 July 2016. She has been your partner for the past five months as at the date of that letter. I note that relationship coincided with the dates of the further alleged offending before me, specifically that to which you will be pleading guilty, as I understand it. She was aware of your previous and current court appearances, and that you had previously been homeless and used drugs.
25 Ms Hawkins noted your imprisonment had allowed you to escape that cycle, most recently while on remand. You had expressed your awareness of your drug use, and she said you had used the opportunity to become fit and healthy and enrol in courses, including drug and alcohol counselling in custody. You were aware of the disappointment that you had brought into the lives of other people that you cared about. She said she spoke to you on a daily basis in custody and she and her family supported you.
26 Also before me was correspondence from Troy Crellin, program manager at Synergy Repairs, dated 27 July 2015. As I discussed with Mr Brennan, I was aware of the involvement of Synergy at the time I sentenced you, and made reference to that within my sentencing remarks.
27 Mr Crellin referred to you coming to Synergy Repairs in 2015, wanting to become a spray painter in the paint and panel industry. He was disappointed to hear you had returned to the justice system after your release from sentence. There was still an opportunity for you to return to Synergy Repairs should you wish. He thought you were now prepared to take responsibility to follow your commitment to employment through.
28 There was also correspondence before me dated 22 July 2016 from Robert Maroney, prisoner mentor at Port Phillip Prison, where you are currently on remand. You were then in the Penhyn unit at the prison. Penhyn is a unit for young offenders, which I assume is where you are still, with a focus on programs to facilitate fulltime work. You are currently working in the prison seven days a week in the kitchen as part of the bakery team. You had been enthusiastic in wanting to enrol in courses and were on the wait list, as I understand it, to commence a number of other programs, including drug and alcohol counselling.
29 I have also read the Young Offenders’ Program Mission Statement prepared by Anne Hooker, youth development officer, Port Phillip Prison, dated 18 June 2016. Ms Hooker is well known, if I may say, and provides great assistance to young offenders in adult prison.
30 This initial plea hearing was adjourned to enable those representing you, as I said earlier, to determine whether they wanted you to be sentenced by me for the pending charge of aggravated burglary. I was advised in writing that that course was now not proposed but that your counsel wished to call Anne Hooker to give evidence.
31 At the return of your plea hearing today, 18 August 2016, I heard evidence from Ms Hooker, as I say, well known to the Court for her involvement with young prisoners in custody.
32 You have been in the Youth Unit at Port Phillip Prison since early July 2016. Following her interview with you, Ms Hooker determined to give you the opportunity to be in the Youth Unit as your attitude and behaviour had been good in custody with no absences from work or other incidents.
33 You have now been in the Unit approximately six weeks with no incidents, and you also worked in the kitchen.
34 Ms Hooker gave evidence that you had exhibited signs of anxiety and depression regarding being in custody awaiting finalisation of your Court matters, and also anxiety regarding your girlfriend, who also suffers from anxiety. You had recently seen a psychologist in custody and been prescribed Zoloft.
35 Ms Hooker described you as motivated to change and doing all programs offered. She gave evidence that it would be her recommendation, if you were sentenced to a term of imprisonment for this offending, that you remain in the Unit and I understand her opinion is ‘valued’ by those responsible for prison movements, although, of courses, I am conscious her opinion cannot be regarded as immutable.
36 Mr Brennan also called evidence from your mother regarding your lack of citizenship and that you may not be able to remain in Australia following sentence.
37 Mr Brennan conceded that this was speculative, however urged your concern about what might happen to you after serving your sentence would mitigate your sentence in that regard. I note decisions such as Schneider v The Queen[1], Konamala v The Queen[2] and Lima Da Costa Jnr[3]
[1] [2016] VSCA 76
[2] [2016] VSCA 48
[3] [2016] VSCA 49
38 Inquiries were made by Ms Tueno for the prosecution regarding this latter submission. I accept the "good character test" is likely to apply to you following completion of your imprisonment and there will be uncertainty regarding deportation which will likely weigh heavily upon you in custody.
39 Also tendered before me on 18 August 2016 was a letter written by you. I have read that letter. Hopefully you will maintain your stated commitment to rehabilitation.
40
In determining the appropriate sentence for the breach of your Community Corrections Order, the prosecutor, at the initial plea hearing on 3 August 2016, submitted the Community Correction Order be cancelled and you be
re-sentenced. Ms Tueno submitted that a combination sentence would be within the range of appropriate dispositions, should I consider such appropriate. She did, however, also make reference to your 20 unacceptable absences.
41 Ultimately, I must determine the appropriate sentence in all the circumstances. I am, however, conscious that your offending before me involved breaches of conditions of the order and that you are yet to formally plead guilty to any of the alleged offending that occurred after the order was in place, other than your current instructions to plead guilty to the offences alleged between 1 and 4 April 2016, involving an offence of aggravated burglary. You are not breached at this stage for further offending. I also take into account the extent to which you did comply with the Order when re-sentencing you and also that you have served four months in custody relevant to the sentence that I imposed in 2015.
42
I remain concerned about your rehabilitation prospects. Your counsel,
Mr Brennan, described your prospects as ‘fair’. I do not have quite the same confidence. However, particularly given your young age, I am mindful of the need for rehabilitation in an attempt to avoid further offending by you and that any sentence I impose should enable that as best I can.
43 In the circumstances, I find the breach proven. Your admission of the breach (plea of guilty to it) is a relevant sentencing consideration in your favour. You have pleaded guilty to it, which has saved the Court the time and cost of a contested hearing. Your plea to the breach has also been indicated at the earliest opportunity.
44 I turn then to re-sentence you on the four charges before me and for the breach. In determining the appropriate sentence I am mindful that you have already spent, as I have said, four months in custody for these offences.
45 I find the breach proven, and I cancel the Community Correction Order and I re-sentence you as follows.
46 On Indictment 201415233, Charge 1, you are convicted and sentenced to 7 months’ imprisonment;
47 On Charge 2, you are convicted and sentenced to 3 months’ imprisonment.
48 On Charge 3, you are convicted and sentenced to 8 months' imprisonment.
49 On Charge 4, you are convicted and sentenced to 4 months’ imprisonment.
50 I order the following in relation to cumulation and concurrency.
51 Charge 3 is the base sentence and I direct the following in relation to cumulation and concurrency.
52 I direct that 3 months’ of Charge 1 be served cumulatively upon Charge 3.
53 I direct that 1 month of Charge 2 be served cumulatively upon Charge 3.
54 I direct that 1 month of Charge 4 be served cumulatively upon Charge 3.
55 For clarity the orders for cumulation are upon each other and upon the base sentence.
56 That results in a total effective sentence of 13 months’ imprisonment and I direct that you serve a period of 7 months before you are eligible for parole.
57 Given the sentence of imprisonment that I have just imposed, to which I have just referred, I do not intend to further sentence you for the breach over and above noting that the breach is proven.
58 Now does that make sense to counsel? Ie: even though there is a maximum of three months, I do not impose any further penalty. Does that make sense? All right.
59 MS TUENO: Yes.
60 HER HONOUR: Also, in imposing the sentence, I have taken into account the purposes of a non-parole period (R v VZ[4]), but also matters in particular relevant to you, being your young age and hope of your eventual rehabilitation. You will, hopefully, be assisted when on parole in that regard. In the meantime, you should take every opportunity you can in custody to undertake as many courses as possible to avoid re-offending when in the community without supervision and to ensure, as best you can, that you are eligible for parole at your first eligibility date.
[4] (1998) 7 VR 693
61 Also, in imposing the sentence that I have, and I refer both to the head sentence and the non-parole period, which I regard as very short, in so determining the appropriate sentence on each charge, I regard them as very short, not only in the sentences individually that I have imposed, but also in relation to the cumulation, as I have previously stated.
62 I also declare, pursuant to s18(4) Sentencing Act 1991, you have spent 15 days in custody by way of pre-sentence detention for the charges for which I am to re-sentence you, and I direct that that be entered into the records of the court. Those dates being from 3 August to yesterday, which is 17 August 2016.
63 Now it is my understanding I do not need to give a s6AAA in relation to the community breach.
64 MS TUENO: Your Honour, I would submit that Your Honour would need to make a 6AAA declaration.
65 HER HONOUR: Just in relation to the breach. Obviously not in relation to the other charges.
66 MS TUENO: Yes.
67 HER HONOUR: All right. If he had been found guilty for the contested hearing, I would have sentenced him to a term of imprisonment of six weeks and ordered some cumulation of that upon the Charges 1 to 4 on the indictment. I do not think I need to say anything further than that.
68 MS TUENO: No.
69 HER HONOUR: No other orders were sought as far as I can tell or remember; is that right?
70 MS TUENO: That's correct.
71 HER HONOUR: Yes, all right. So that is 15 days of PSD. As I say, Mr Brennan, I regard - you may not, I appreciate it is all relative, but I regard that sentence that I have just imposed upon re-sentence for those four charges as lenient, and you will note the difference of six months between the 13 month head sentence and the non-parole period of, what is it, seven - what is it? I have not got it in front of me. Anyway, six months difference, as it must be, consistent with the legislation.
72 Is there anything further?
73 MR BRENNAN: Can I just raise one matter with my friend?
74 HER HONOUR: Sure.
75 MR BRENNAN: No, Your Honour, that's - - -
76 HER HONOUR: Is it all clear? What is the issue? Is there some issue?
77 MR BRENNAN: No, no, Your Honour, I just wanted to clarify with my friend and it's - - -
78 HER HONOUR: You are all right?
79 MR BRENNAN: Everything is in order, yes.
80 HER HONOUR: That is all right. All right. Mr Rooney, what that means in simple language - I am sure you have been following it, although you are probably a bit shell-shocked about it all at the moment, but basically that is a head sentence of 13 months, seven months before you are eligible for parole, and I have declared 15 days, so it is seven months less 15 days.
81 OFFENDER: Thank you very much.
82 HER HONOUR: All right.
83 MR BRENNAN: As Your Honour pleases.
84 HER HONOUR: Yes, thank you.
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