Director of Public Prosecutions v Rooney
[2015] VCC 717
•28 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
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: | 20 May 2015 | |
DATE OF SENTENCE: | 28 May 2015 | |
CASE MAY BE CITED AS: | DPP v Rooney | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 717 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms G. Walton | Office of Public Prosecutions |
| For the Accused | Ms J. Garner | Victoria Legal Aid |
HER HONOUR:
1 Brandon Rooney, you have pleaded guilty to two charges of aggravated burglary and two charges of theft. The maximum penalty applicable to the offence of aggravated burglary is 25 years’ imprisonment, and theft ten years’ imprisonment.
2
These crimes arise out of events which took place on 21 March 2014 and on
9 May 2014. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A.
3 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious. It is particularly disturbing that you returned to commit similar offending on 9 May.
4 At the time of this offending you were 19 years of age and just short of 21 at sentence. There are co‑accused in your offending, Jarrod Malone and Corey Grant, both 29 at the time of the offending, relevant to Charges 1 and 2, and Jarrod Malone relevant to Charges 3 and 4.
5 Neither have been dealt with by the Court. There is a warrant for Grant’s arrest following his failure to appear at Court. Malone is listed for a committal case conference in the Melbourne Magistrates’ Court on 18 May 2015.
6 I turn to a brief summary of your offending relevant to Charges 1 and 2. At approximately 5.00am on 21 March 2014, you and your two co‑offenders attended a private house address in Mitcham. The two victims, both aged 26, had been living at that address for about one month.
7 The three of you were wearing white gloves and balaclavas covering your faces. You had a crowbar and your co‑offenders an imitation firearm and a large torch.
8 Mr Au was getting dressed for work and Ms So was in bed. They heard their dogs barking and Mr Au went to the front door to calm the dogs. When he was standing about a metre from the front door it was forced open and the three of you entered his home. The offender who was carrying a large torch yelled, "Get down" to Mr Au. You walked around the house looking at your watch, saying things like "Two minutes". You placed various items including a PlayStation 3 and two mobile phones into your backpack.
9 Ms So saw one of the offenders walk toward the bedroom holding something in his hands, which she thought was a gun. That offender asked her if she had any drugs or cash. Ms So then went with that offender into the living room where Mr Au gave cash to the offender. The offender with the imitation firearm asked Ms So for drugs and cash, one asked for mobile phones.
10 One of the offenders went to the bedroom, study, kitchen and bathroom to search and collect property. During that time Ms So was in the living room. One of the co-offenders asked if there was a safe. The three of you left the premises with various items. As the three of you left, one said, "We have a man watching over the street for 20 minutes." You had been in their home for about 15 minutes.
11 One of your co‑offenders placed the Apple iPhones that were stolen onto the Gumtree website. That phone was subsequently purchased for $500 from you and one of your co-offenders' by a person who responded to the Gumtree advertisement.
12 Disturbingly you offended again approximately one and a half months later.
13 In the early morning of 9 May 2014, Mr Sukumaran (aged 24) placed an advertisement on an internet advertising site for “puff play”. Your co‑offender Mr Malone exchanged details via email with the victim who agreed to meet later that morning.
14
At about 8.40am you and Malone attended the victim’s home in Box Hill.
Mr Sukumaran let Malone in and then saw Malone letting you into the house and lock the door. Malone told Mr Sukumaran to calm down and sit down and it would soon be over soon. He said. “It’s up to you whether you want it to get violent or not. We don’t want it to get violent. We’re just here to try and make some money and stuff.”
15 Malone remained with Mr Sukumaran while you ransacked the premises. Both you and Malone were in his house about 20-30 minutes. When you both left, Malone said to Mr Sukumaran, “You better not call the cops, mate.” You and Malone left the premises with various items.
16 On 13 May 2014 police executed a search warrant at Malone’s house which revealed property stolen that belonged to Mr Sukumaran.
17 On that same day you were arrested at your home address. You handed police the Nike runners stolen from Mr Sukumaran’s home and also the clothing worn by you when selling the stolen phone relevant to Charge 2.
18 You were taken to Box Hill Police Station for interview and made admissions regarding Charges 1 and 2, saying you were told that drug dealers lived at that address. That you and Malone went to the address the day before to make sure it was the right address. Just prior to the offending you said you had met Corey Grant. Conversation prior to your offending was around having a bag each, making sure your faces were covered and ‘pumping’ each other up. You said you wore a black hoodie and bandanna. You said Malone kicked the door in. You said Grant had a gun but you did not know if it was real or not, and that it was not intended it be used but more for "intimidation".
19 When in the house you realised, when you could not find the alleged drug dealer, that you might have been in the wrong house. You said it was "gut wrenching really, with these two innocent – like but at the same time we couldn’t back out of it. Like we still needed cash and stuff." You said you filled up your backpack. You had not seen Grant since, nor had you met him prior to the night before your offending in Charges 1 and 2.
20 You admitted to the police that you sold the phone on Gumtree for $500 and attempted to justify your offending, saying it was better than robbing "some innocent off the street". You agreed you had done the wrong thing, considering it was not the right people (ie not "Cliff").
21 Turning to your offending in Charges 3 and 4. You said Malone had the idea. You and Malone were going through some ‘stuff’ and saw an advertisement by a guy putting on a post "a fuck for a puff". You went around to the house and the front door was left unlocked (as has been arranged by Malone in texts with the victim). Malone went in first and you followed about ten seconds later.
22 Malone said to the victim. "It’s up to you whether you want it to get violent or not. We don’t want it to get violent. We’re just here to try and make some money and stuff."
23 You said that whilst Malone stayed with the victim you went through the two rooms upstairs and took some of the victim’s property over a period of about 10-15 minutes.
24 You said your offending occurred because you needed cash and thought it was better that it was ‘this guy’ than some innocent family. You said you were motivated to do this offending because the guy was just some “druggie”. You had seen the advertisement and thought it was disgusting and you thought, "this guy needs to get robbed". You told police the victim would have learnt more of a lesson from it, that it was pretty stupid of him giving out his address online.
25 There are a number of aggravating features of your offending, in particular the level of planning involved on both occasions and the use of disguises. The latter relevant to Charges 1 and 2.
26 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial.
27 This matter originally began in the summary stream of the Magistrates’ Court and you pleaded guilty at that time. However on 17 December 2014, during the course of the plea hearing, the magistrate transferred the matter to the indictable stream. You were then committed to this Court by way of straight hand‑up brief on 31 March 2015 after an application for summary jurisdiction was refused. I accept your plea of guilty was entered at the earliest opportunity and also note your admissions to police at the time of your record of interview.
28 You have not spent any time in custody by way of pre-sentence detention for these offences.
29 You do not have any prior court appearances and that is significant when sentencing. I note subsequent offending dealt with in December 2014 and such is relevant when assessing your rehabilitation prospects. There are no charges pending. You have certainly "jumped in at the deep end" with your offending that is before me.
30 The victims of your offending have, not surprisingly, suffered considerably as a result of it, and I shall return to their victim statements shortly.
31
Ms Garner appeared on your behalf at your plea hearing. In her written outline of submissions (Exhibit 1) she referred to your subsequent offending. On 10 June 2014, about a month after you were interviewed by police for these offences, you stole money and property from your mother and
step-father and were charged with dishonesty offences.
32 On 15 July 2014 you were charged with committing an indictable offence on bail, contravening a bail conduct condition, intentionally damaging property, shop stealing, unlawful assault and were remanded in custody.
33
On 22 October 2014 all outstanding matters, including those before me, were listed at the Ringwood Magistrates’ Court. The magistrate deferred sentence until 17 December 2014 to allow you to engage with "Headspace". On that date he determined the charges now before me, as I have previously stated, were not suitable for summary hearing and were adjourned to the Melbourne Magistrates’ Court. For your other further offending, you were placed on a
12 month undertaking.
34
Ms Garner addressed her thorough written submissions during the course of your plea hearing, in particular relying upon documents tendered relevant to your age, rehabilitation prospects and lack of prior offending. Ultimately
Ms Garner’s submission was that a Community Correction Order be imposed for this offending.
35 Ms Garner referred to your background and feelings of abandonment, that you then mixed with others of an “anti-social persuasion” at the time of this offending and you had further instructed you used "ice" at the time.
36 There was material before me referrable to your disadvantaged background and accept such is a relevant consideration (see Marrah v R[1] and DPP v Terrick & Ors[2]), although in my opinion, the weight to be given to this, given the nature of this offending, is subordinate to the need for denunciation, general deterrence and just punishment.
[1] [2014] VSCA 119
[2] [2009] VSCA 220
37 Ms Garner relied on R v Mills[3]. There is no doubt, as a young offender, rehabilitation is an important sentencing consideration. However, the general principles enunciated in Mills are just that, general propositions and are not to be treated as if they were of usual or automatic application. See R v Lawrence[4], cited with approval in Gosland & McDonald v R[5]. See also Azzopardi v R[6] and Scott v R[7].
[3][1998] 4 VR 235
[4] (2004) 10 VR 125
[5] [2013 VSCA 269
[6] (2011) A Crim R 369
[7] [2013] VSCA 347
38 In R v Tran[8], Court of Appeal Callaway AJ said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence,16 but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[8] (2002) 4 VR 457 at p462
39 As I discussed at length with Ms Garner, your offending behaviour is very serious, including the reasons proffered as to why you chose your victims, your involvement in the offending, and your offending on a second occasion, even after you realised there were "innocent" victims on the first occasion. All your victims were "innocent victims", subjected to a terrifying invasion of their homes by offenders, masked and with weapons. Home invasions are a “particularly nasty form of criminal conduct”, and such has been recoginsed by the courts in Hogarth v R[9].
[9] [2012] VSCA 302
40 Ms Garner submitted the principles in R v Verdins and Ors[10] were enlivened, reducing your moral culpability and moderating general and specific deterrence, relying on the report of Mr Joblin primarily. In my opinion that report does not support her submissions.
[10] (2007) 16 VR 269
41 In his conclusion, Mr Joblin considered a diagnosis of borderline personality disorder was not applicable, although you had symptoms of it, including depression and strong feelings of abandonment. In his opinion the main issue that impacted on you related to your strong feelings of abandonment, which had led you to seek out and receive gratification from the company of persons of a "somewhat anti-social persuasion". In that environment you began drug use. In my opinion his conclusion does not enliven the Verdins principles.
42 Regarding your ability to cope in an adult prison population, whilst Mr Joblin referred to some concerns in that regard his opinion at best was that you "may" have some considerable difficulty psychologically if incarcerated in the adult system. At best in adult custody there was a “likelihood” of developing a personality disorder. Specifically you would feel that the efforts you have made since being bailed in mid-2014 were in vain. In my opinion that conclusion does not enliven Verdins Principles 5 and 6.
43 There have been numerous decisions in which the Court of Appeal has considered Verdins principles, Johnson v R[11], Tran v R[12], citing Carroll v R[13] and Latif & Ors v R[14], particularly regarding "causal connection". That list is by no means exhaustive.
[11] [2013] VSCA 362
[12] [2012] VSCA 110
[13] [2011] VSCA 150
[14] [2013] VSCA 51
44 The task for the sentencing judge in every case is to "examine what the evidence shows about the particular condition and how it affected the mental functioning of the offender, either at the time of the offending or at the time of sentencing, or both." See Tran.
45 In R v Zander[15], Court of Appeal Dodds-Streeton J stated:
"The principles of Verdins do not dictate the automatic mitigation of sentence in an offender, simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters."
[15] [2009] VSCA 10
46 Whilst I do not accept that the conclusions reached by Mr Joblin and reasons for them do not enliven any of the principles in Verdins, I do however accept incarceration in an adult prison, the likelihood of you developing a personality disorder will increase and consistent with general sentencing principles,
I accept that prison will weigh more heavily upon you than other more able prisoners. I have taken this into account when determining the appropriate sentence.
47 Ms Garner relied upon your co-operation with Youth Justice whilst on bail for these offences.
48 But before that I turn again to the report of Mr Joblin, Forensic Psychologist, dated 13 May 2015. He outlined your history. You came to Australia in 2011 from New Zealand, stayed six months, returned to New Zealand, then back to Australia in 2013. You had been here since.
49 Your parents separated when you were 5. You described your father in ambivalent terms. You said he was a very heavy drinker, prone to anger and violence and that you often witnessed violence towards your mother and were also yourself the subject of physical abuse. Your mother was in another relationship from when you were 12 and you described a very difficult relationship with your mother and step-father.
50 You have two brothers and a sister. You said you tried to maintain some contact with your brothers but with little success. You described feelings of abandonment and rejection from your family.
51 You began schooling in Adelaide, then continued in Christchurch. You described a number of problems at school, leaving school after three terms of Year 9.
52 At one stage you became a "street-kid" when in Christchurch. You came to Australia and apparently your father did not make you particularly welcome, so you left his home, returning to New Zealand, staying for two years, I gather without seeing your mother, before returning to Queensland in 2013.
53 You had most recently been engaged in a pre‑apprenticeship course designed for young offenders, by the time you saw Mr Joblin and at the time of interview, you believed you had secured an apprenticeship with a firm in Burwood, but it would appear that that has not eventuated.
54 You said you had previously been involved with a young lady who became pregnant to you and that she had a miscarriage and shortly thereafter the relationship ended. At that time you said you had nowhere to live, had lost your job and in that context your offending before me occurred.
55 Following being subsequently charged with other offences and spending approximately two weeks in custody, you were in accommodation organised by Salvo Care, and documents were placed before me relevant to your current accommodation.
56 Regarding your drug and alcohol use, you reported to Mr Joblin that alcohol had never been a problem for you and cannabis use only relatively recently. You had begun smoking ice, you said when you were 15 and at the time of this offending you said you had been using ice. In Mr Joblin’s opinion you were fragile in relation to use of ice and ongoing assistance would be important. Of concern I note your recent return to ice use on a number of occasions in 2015, albeit you have been receiving significant community assistance. It is unclear from the report if Mr Joblin was aware of the extent of your ice use and numbers of times of it in 2015.
57 As I said, a number of documents were also before me, including a number of supervised bail progress reports, prepared following your release on bail on 28 July 2014.
58 In many respects, in particular the earlier reports are positive, however of concern is the deterioration in your commitment to abstaining from drugs since January 2015.
59 In the report of 20 August 2014 you had attended all appointments with Youth Justice and engaged well. You were referred to Jesuit Social Services Next Steps Program for accommodation and were assessed as suitable for ongoing support. It was anticipated you would be allocated to a YJCSS case manager. You were then described as motivated to change. You attended the Artful Dodgers music studio in Collingwood and apparently enjoyed it. You had also been referred to residential detoxification units in Glen Iris, Fitzroy and Moreland, although not utilised those.
60 In summary, you were described at that time as highly motivated and open to accessing the support of Youth Justice and other community services with high prospects for rehabilitation.
61 There was a further bail progress report dated 24 September 2014. You had moved into a property at Chadstone, supported by a Youth Justice Community Support Service worker who engaged with you on a weekly basis.
62 There had been recent reconnection by you with your mother, apparently meeting weekly for lunch. As at September 2014, that is last year, you were not involved in education, training or employment, although indicated an intention to enrol in a spray painting and panel beating course. You continued to attend Artful Dodgers.
63 You had been allocated to Mr Aaron McKee, YSAS and engaged in weekly appointments. You reported occasional alcohol use but denied relapse into illicit substance use. You had at that time demonstrated an ability to comply within a community setting with Youth Justice and were also assessed as having good prospects of rehabilitation.
64 There was a further bail progress report, 21 October 2014. You had been referred to the Mission Australia Synergy Repairs for a spray painting and panel beating course and had attended an interview in that respect. You had been accepted into the course three days a week, however had only attended for one day and said it was due to anxiety and recent panic attacks. Since 2015 I note with concern your continued absences from that course. You had continued however, as at October, to be with Artful Dodgers. Again at that time your rehabilitation prospects were considered to be good, however in a further progress report of 15 December 2014, Youth Justice notified your police informants of concerns they had regarding your failure to attend appointments and concerns regarding your suspected substance misuse.
65 As a result you received a verbal warning on 5 December 2014 and it would seem your attitude then improved. Unfortunately since January 2015 your efforts of rehabilitation have deteriorated significantly despite numerous supports.
66 At the time of the report in December you were still living at the property in Chadstone. You had declined admission to residential detoxification, including ReGen, denying illicit substance use. You reported occasional alcohol and cannabis use. Use of those substances as I have said is concerning and in particular I am concerned about your disclosure of recent lapses of ice use and continuing use in 2015.
67 You also attended with Dr Narelle Warden from YHaRS for sessions to focus on your mental health difficulties and needs. In her opinion you required ongoing intervention to develop more adaptive and functional coping strategies.
68 On 9 December 2014 you attended for assessment with Ms Karen Vogel at Headspace, Knox. You were allocated to a clinician in 2015 but because of your absences from the program you were exited from it. Your lack of commitment to that concerns me.
69 Reference was made to you then, and I note currently, supported by a wide network of services including Youth Justice, YSAS, YJCSS, YHaRS, and Mission Australia. You require clear structure, direction and assertive
follow-up. Your primary risk factors were considered to be ongoing family issues, substance misuse and negative peer associations.
70 There was a further progress report dated 30 March 2015. As recently as
5 February 2015 you had voluntarily admitted to Windana Youth Residential Withdrawal Unit in Dandenong for a ten day detoxification program, due to your ice drug use, however you chose to exit the program on 7 March approximately. You said you exited early because you were confident you could continue to make progress in the community and did not believe a residential detoxification stay would be beneficial. You then continued to use cannabis and alcohol. As is now apparent your ice use also continued.
71 Dr Warden noted you had experienced difficulty putting strategies into effect. You ceased your involvement with Dr Warden on 16 December 2014 with a recommendation you attend with Headspace, and I have referred to your unsuccessful participation in that program.
72 You recommenced the spray painting and panel beating program on
18 February 2015 and remained involved with Artful Dodgers.
73 There was a further progress report dated 20 May 2015 which contained a number of concerning matters relevant to your rehabilitation prospects. You had attended 39 out of 49 appointments for supervision with Youth Justice. On five of the ten occasions you did not attend, you did not have a valid reason. Generally your engagement had been described as positive. That was your first experience of independent living and you had been receiving assistance from Ms Louise Dalton to assist. Unfortunately, your engagement with Ms Dalton had been inconsistent and you disclosed several recent lapses of ice use, but to your credit I note you self-disclose.
74 In counselling with Dr Warden over ten sessions, your engagement had been predominantly positive, although you adopted an avoidant coping style. Regarding your referral to Headspace, you did not attend on 24 March 2015 and 30 March 2015. You did attend on 13 April 2015 in the company of a representative of Youth Justice. Unfortunately you failed to attend appointments on 20 April and 4 May 2015 and as a result your treatment with Headspace ended.
75 Your attendance in the spray painting and panel beating course in North Melbourne was confirmed. There had been some improvement in your attendance and communication, although whilst you were to attend three days per week, you attended on most weeks, two days per week. Apparently you struggled with time management and concentration.
76 Whilst I note the author of the progress reports referred to your consistent desire to address your offending-related risk factors, there has been in my opinion behaviour by you in the recent months which calls into question your commitment.
77 Ms Dunbar who has been involved with you on the Intensive Bail Program, in her frank evidence before me, conceded that from January 2015 you had not put in the same effort as prior to January 2015. I was informed you had a number of relapses into ice use this year. Further while you attended for a residential detoxification program, you stayed for only two of the ten days, exiting the program early because you said you then had issues with a girlfriend at the time.
78 It became apparent from questioning of Ms Dunbar that you had in the past been prescribed medication by general practitioners and had been reluctant to use it and ceased using it. In addition in relation to the spray painting course, you had been "tardy" in your attendances, averaging approximately two days per week, on occasions arriving late for work.
79 All these matters are relevant when I am determining your rehabilitation prospects. I am mindful however that Ms Dunbar has referred to a number of positive aspects also relevant to your rehabilitation.
80 You admitted you had used ice a number of times between January 2015 and as recently as three weeks prior to this plea hearing.
81 I was also advised by Ms Dunbar you went into a Residential Detoxification Program, as I previously said, and exited because of your then girlfriend. No further referrals for detoxification were made. Exiting that program prematurely for whatever reason concerns me. Ms Garner submitted you may have learnt a lot in those two days and as such did not feel the need to remain. Well if that be the case, that again shows your lack of insight into the need for ongoing treatment for drug use. Ms Dunbar confirmed whilst continuing to work with Mr McKee you were still using ice.
82 You were not being tested for drug or alcohol use. Ms Dunbar conceded your ice use was "a very significant risk factor". Whilst Ms Dunbar gave evidence that you do realise you need to address your drug use, I am concerned about your ability to do that and perhaps your genuine desire to do it.
83 I was also told by Ms Dunbar you had in the past been prescribed Valium but were ambivalent to its use, which you would not take consistently. Further you had been prescribed anti-depressants however after a couple of days ceased using it.
84 Reference was also made to your attendance at Headspace by her, initially in December then on approximately 24 March and that you failed to attend a number of appointments and had been exited from the program.
85 Ms Dunbar described you at times as mature and at other times immature emotionally. In her opinion you were a vulnerable young person.
86
In general regarding the positive aspects of your rehabilitation, you had some victim empathy she said, had not previously been incarcerated in an adult prison undergoing sentence. I am totally aware of that. You now have the support of your family, although it was in your early stages that you had
pro-social goals and she thought were generally quite motivated.
87 Before me was a report from Aaron McKee, YSAS team leader, 18 May 2015. You first engaged with YSAS on 31 July 2014 and achieved a number of goals, specifically engaging well with the writer, presenting as honest and open. You demonstrated a willingness to engage in treatment and address substance use issues and were open to discussion about the links between your substance use and your offending behaviour. A targeted education had been provided to you around harm minimisation and relapse prevention strategies.
88 The report referred to your attendance for weekly appointments and engaging well in treatment. I note however you have nevertheless maintained your ice use, in addition to cannabis and occasional alcohol use during your contact with Mr McKee. I heard evidence from Mr Bayldon, also from YSAS. Both he and Mr Tanner gave evidence before me.
89 Before I refer to their evidence, I acknowledge, as I did during the plea hearing, the very difficult job undertaken by those dealing with young offenders in an effort to guide them towards a law-abiding lifestyle. Their job is not easy. It must be said however I was concerned about the lack of reference in the reports prepared for Court to aspects relevant to your rehabilitation, specifically your return to ice use in 2015.
90 The community and judges expect that when determining the appropriate sentence to impose in any case, a judge must have all the relevant information before them, particularly if that information is known to the authors of reports. It was concerning that information I consider directly relevant to assessing your rehabilitation prospects was absent, including reference to your continued use of ice.
91 There is always a danger that written correspondence and references from organisations and persons will be accepted without the authors even being required to give evidence. This may lead to a judge having incorrect or truncated detail relevant to rehabilitation and other issues.
92 Mr Bayldon had only been involved in your direct supervision for three weeks prior to your plea hearing, involving as I understood it, only one face to face contact with you. He had however read your file and the report of Mr McKee. He conceded in evidence that you had lapses into ice this year.
93 There was documentation from Mr Mathew Tanner, education and employment officer with Synergy Auto Repairs, 20 May 2015 confirming your current enrolment in Certificate II in Automotive. That work gives you the opportunity to work on and repair cars in the area of panel beating and spray painting and on completion of work experience it is hoped you will be moved on to an apprenticeship in either spray painting or panel beating. Mr Tanner described you as having demonstrated maturity, a great attitude and initiative and willingness to learn. You were described as having demonstrated honesty and good communication skills.
94 Ms Garner’s instructor obtained some instructions from you regarding your “back problem” and I gather material that might relate to that, if it existed, was going to be provided to the Court before this sentence and after the plea hearing.
95 Correspondence was forwarded to me subsequent to your plea hearing from your solicitor, Mr Jonathan Makary. The report was from Dr Simon Morley, Radiologist, which was interpreted as indicating you did not suffer any injury to your back (Exhibit 8). That was discussed briefly in your absence with Ms Garner this morning and she agreed the reports indicated you did not have any injury to your back.
96 There were two reports from Salvo Care dated 22 October 2014 and 31 March 2015, the latter prepared by Louise Dalton, intensive support worker with Youth Justice Community Support Service. In her conclusion she stated you had shown insight into your behaviour and had actively started working towards addressing the issues that had impacted on your life. A further report from Ms Dalton was tendered, dated 20 May 2015. Ongoing support could be provided by her on a weekly basis whilst you were in the Chadstone property and for up to six weeks after exiting.
97 Mr Mathew Tanner in cross-examination conceded your initial attendance had been positive but that since then you had relapsed and had told him you had used ice on a number of occasions this year. He confirmed that on approximately 12 occasions you attended only twice a week and not three times a week at the course or program. The majority of those days that were missed, he said was on your reporting, that you had a back problem. He gave evidence you would have the possibility of an apprenticeship. I discussed with him my concerns about an apprenticeship in the field of panel beating and/or spray painting if you continued your ice use and the transcript will reveal that discussion.
98 There were a number of victim impact statements before me. A joint statement prepared by Ms So and Mr Au. Following this offending they moved out of their property. For about six months after your offending they were very sensitive to knocking noises and noises outside the house they were then living in, even now triple-checking that their doors were locked.
99 There was a victim impact statement from Rueban Sukumaran, who described that since this offending he had not been able to sleep, eat or even step out of his house, fearing someone would be watching him. He has visions of you at his gate and sees you in his nightmares. He was scared he would be attacked in the future at some other location. He described being angry and that he was defenceless. Your offending had put his family under severe stress and trauma.
100 Yours was no doubt very serious offending involving innocent persons in their own homes. In particular, I note regarding Charges 1 and 2, the presence of weapons and disguises, no doubt terrifying to the victims.
101 I am very concerned about your offending behaviour, even though you do not have any prior court appearances. The maximum penalties applicable to this offending, particularly in relation to Charges 1 and 3, is 25 years’ imprisonment, which reflects the seriousness with which Parliament regards this offending.
102 You have shown some improvement in your attitude, although I am very concerned about your recent and repeated relapse into ice use and early exit from residential detoxification. I am concerned you lack an appreciation of the seriousness of using such drugs and perhaps the link of drug use to offending. On the other hand, you have to date had a number of supports in the community and have coped quite well, putting to one side your relapse into ice use. Your continued alcohol and cannabis consumption still causes me concern. The only solution, Mr Rooney, is that you give them up, if you are going to be rehabilitated.
103 I am most unimpressed with your reasons for this offending and note the features that aggravate it, to which I have previously referred.
104 Ultimately Ms Garner submitted that based on all the material before me, the appropriate disposition was a Community Correction Order. If I considered there needed to be a term of detention/incarceration, then I should have you assessed for your suitability for a Youth Justice Centre order.
105 Ms Walton, who appeared on behalf of the prosecution, submitted that a Community Correction Order on its own would be a manifestly inadequate sentence in all the circumstances. Confinement, she submitted, was required for your offending, either a combination sentence or Youth Justice disposition.
106 Ms Walton referred to the seriousness of your offending. That your offending occurred in company, with weapons present, early in the morning at the victim’s home and that you stayed at the property for a significant period of time. That there was also preplanning. In relation to the second property she said this was one and a half months later. You remained in that house about 20-30 minutes and again there was planning. Both Charges 1 and 3, she submitted, involved targeted offending.
107 Ms Walton referred to the significant impact of your offending upon the victims. Further, each of the offences were discrete relating to two separate occasions and with different victims.
108 She acknowledged remorse in your early plea of guilty and full admissions to police, although Ms Walton submitted there were questions about your level of insight and referred to the report of Mr Joblin.
109 Ms Walton submitted the Verdins principles were not enlivened. Any mental impairment was limited. In particular there was not a current diagnosis of borderline personality disorder at the time of your offending. At best she said you had “symptoms developing” according to Mr Joblin.
110 Ms Walton submitted there was not the necessary connection between any mental impairment and your offending as such to decrease your moral culpability. Ms Walton submitted ultimately the conclusion of Mr Joblin is that you sought out persons of anti-social persuation.
111 Ms Walton submitted whilst there was some potential applicability of limbs 5 and 6 of the Verdins principles, she submitted as there was no mental impairment which enlivened those principles, that there would be very limited application of Verdins, if at all to 5 and 6. She did however concede, consistent with general sentencing principles, that it was relevant that prison would likely weigh more heavily upon you than another prisoner with your background and possible symptoms.
112 Ms Walton conceded Mills was relevant when sentencing you, but also referred me to Azzopardi.
113 Ms Walton submitted general deterrence and specific deterrence were relevant when sentencing. Whilst you did not have any prior criminal history and had made some progress with the Youth Justice program, these she said were two planned and targeted offences about a month and a half apart.
114 I have carefully considered both counsels’ submissions and in making my determination I am mindful of the decision of Boulton & Ors[16] which has been referred to in other authorities including most recently DPP v Maxfield[17] and also Alam v R[18]. I have not lost sight in your case of your age. You are a "young offender" and rehabilitation is important when sentencing a young offender. I am also aware that you do not have any prior court appearances and that is significant. I am also aware and take into account your early plea of guilty, which commenced in effect from the time of your interview with the police. Also I note your positive involvement with Youth Justice Centre since late July 2014 until early 2015.
[16] [2014] VSCA 342
[17] [2015] VSCA 95
[18] [2015] VSCA 48 (para 20)
115 There are, however, very concerning aspects of your offending, including the gravity of it on two separate occasions, your rehabilitation prospects, I have concerns about your ability to be rehabilitated, in particular given your relapse into ice use over the approximate four months to date in 2015. Although one can never give up and I do not give up hope of your rehabilitation, particularly at your age, it is clear you have a long way to go. Part of the process is you understanding your need to avoid ice, drug use and to appropriately attend for detoxification and counselling. Your rehabilitation prospects will greatly improve if you stop using ice, alcohol and cannabis and engage in meaningful employment.
116 I have carefully considered the sentencing submissions made by Ms Garner. But in my opinion, to sentence you to a term of detention in a Youth Justice Centre is not appropriate, even mindful as I am of all matters to which I have referred, in particular relevant to mitigation of sentence.
117 I have carefully considered a Community Correction Order, in light of Boulton. Even accepting all that has been said by the Court of Appeal, enabling Community Correction Orders to accommodate more serious offences, in my opinion to impose only a Community Correction Order, even with the proposed conditions, would not appropriately address all sentencing principles that apply in your case. In my opinion there must be a term of imprisonment imposed. In so deciding, I am however mindful, you have not previously been in custody, other than for about two and a half weeks on remand and I am conscious of your age. I have in determining the appropriate sentence, factored into the amount of time you need to spend in custody, all those matters and in particular those in mitigation of your sentence.
118 I had you assessed for a Community Correction Order and received a Corrections assessment report regarding your suitability for same, prepared by Mr Temple-Camp. You have been assessed as suitable with a number of conditions attached. You presented as willing to and able to comply with a Community Correction Order and you did not identify any difficulties in doing so.
119
I am advised by my Associate, Ms Jackson, that Mr Temple-Camp had been advised of "potential" back problems, however you assured him it would not adversely impact upon your ability to successfully complete the order and comply with all conditions imposed, including a work component. Again,
I refer to subsequent correspondence that you do not suffer an injury to your back which would prevent you from working.
120 Mr Temple-Camp was advised again at my direction of the support services currently in place to assist you in the community. He understood that support services, with respect to housing and vocational development, could remain in place under a Community Correction Order and that your involvement in those services could be further supported through CCS supervision and case management. I do and can direct that you continue with those services.
121 Your involvement with YSAS could be mandated under a Community Correction Order and following you no longer being eligible for those age-specific services, substance use treatment could be implemented on the order.
122 Ultimately I have concluded that the appropriate disposition is as follows.
123 On all Charges 1 to 4, you are going to be sentenced to an aggregate term of four months' imprisonment, which commences today.
124 Following your release from custody, in four months' time, I propose you be subject to a Community Correction Order for a period of three years. I have to tell you something about that order, so that you understand what it means and in particular what will happen if you breach that order in any way.
125 There are a number of core conditions that apply to a Community Correction Order:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. I you do, you breach the order and you come back before me. We will talk about that in a minute.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is three years.
·You must report to the Community Corrections Centre at Dandenong, you will be given the adress, or you will be advised of that for when you are released, within two clear days after your release from custody. If you do not turn up on time, you breach the order, back before me.
·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
They are what we call core conditions, all of those. They apply to everybody who is on a Community Correction Order, not just you, everyone.
126 But there are a number of additional conditions that apply to you:
· You have to perform 300 hours of unpaid community work over a period of 18 months, as directed by the Regional Manager (s.48C). I just want to digress and mention at this stage, the material and your counsel have indicated that you do not have a back problem, and you have told Mr Temple-Camp you do not have any injury that would prevent you from doing work. So the last thing you want to do is come back before me because you have not done work.
· You must be under the supervision of a Community Corrections officer for a period of 36 months, that is the whole time.
·You are required to be supervised, monitored and managed, as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager (s.48D(3)(a)).
· You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e).
· You must undergo programs or courses aimed at addressing factors relating to your offending, as directed by the Regional Manager.
127 You must attend for review of your progress, so this is what we call "judicial monitoring". You must attend for review of your progress and compliance or otherwise with all those conditions, back before me on 27 May 2016 at 9.30 am.
128 I can only impose a Community Correction Order if you agree to such an order being imposed. So I have got to tell you even more about it.
129 I should advise you that if you contravene or breach this order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. So if you breach this by committing offences, you can be sentenced to gaol for the breach, as well as the offences, put them to one side, but for the breach.
130 You can also be re-sentenced for the offences that are before me. In other words I would re-sentence you on the four charges that are currently before me. One of the options available to me is a further term of imprisonment, and you can virtually count on it.
131 Now you have got to be extra careful, basically for the next three years after release. No committing any further offences that might incur a term of imprisonment, otherwise back before the court, back before me, re-sentenced by me, go to gaol. I mean it is simple. That is the way it works. Any breaches of the order, I will be told about it, and I will then see you and deal with you.
132 I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, or worker if you like, as part of this order, you can also be fined.
133 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty by jury verdict, in other words if you had said, "I wasn't guilty of these charges" and you were found guilty, I would have sentenced you to 5 years' gaol, with a non-parole period of 3 years.
134 Now, before we go any further, I have to find out if you consent to the making of the order. Now have you spoken to your client, Ms Garner?
135 MS GARNER: I have, Your Honour. I went through the Community Correction Order assessment outcome, recorded 21 May this year, and explained what was proposed and I was instructed by Mr Rooney that he would comply with any conditions that Your Honour sought fit to impose and confirmed again that he had no impediment to completing unpaid community work.
136 HER HONOUR: All right, now, so I have to ask you. Ms Garner says, in case you did not hear her, because her back was towards you, what she said was that she has spoken to you about this Community Correction Order and you have said two things, one is that you consent to being on the order, knowing the possible remifactions or results if you breach it, and further you have advised Ms Garner there would be reason why you could not complete the work component. They will not give you anything hard to do if you do have a back problem. Do you follow? They are very easy to work around whatever the issues are.
137 Now having heard all of that, do you consent to the order being made, or not? Nice loud voice, can you - - -
138 OFFENDER: Yes I do, Your Honour.
139 HER HONOUR: Yes, all right. Was that recording? Did you get that? Yes, can you pick up that microphone and say "yes". It is a bit embarrassing, I know. It is a big court.
140 OFFENDER: Yes I do, Your Honour.
141 HER HONOUR: All right, put it down, thanks very much. All right. All right just have a seat.
142 All right, so the formal order is, on Charges 1 to 4, an aggregate sentence of four months' imprisonment, followed by a community corrections order of three years' duration.
143 I have also indicated the 6AAA. I am told that there is no PSD, no pre-sentence detention, and therefore, pursuant to s18(4) Sentencing Act, just for completeness, I state I do not declare any days in custody by way of pre-sentence detention. Correct, Ms Garner?
144 MS GARNER: That is correct, Your Honour.
145 HER HONOUR: The prosecution made application for a forensic sample, pursuant to s464ZF. Ms Garner consented to the making of the order on your behalf. I make the order on the basis of the seriousness of your offending. It will be for a saliva sample, not blood, but I must advise you, the authorities may use reasonable force in order to obtain that sample. All right? I have to tell you.
146 Now, are there any other orders?
147 MS GARNER: No, Your Honour.
148 HER HONOUR: Madam Prison Officer, Corrections, would you mind making a note of the following, because my understanding that the prison authorities do take notice of anything that the court does say, in particular you are dealing here with an offender who has not been in custody before, apart for a short time on remand somewhere, so he has not been in custody before.
149 He is also a young offender. I think he is 21 in the next couple of days, but he is still a young offender, and if it could simply be noted on the file, perhaps a question mark, Mulberry Unit or equivalent, may be considered. That is totall out of my range, of course, nothing to do with me, but really what I am urging is consideration to a youth unit, if possible, but in the end, of course, I accept, I have no control over that. But I just want that noted.
150 MS WALTON: Your Honour, if I can just raise one point? I do have the original warrant that was issued.
151 HER HONOUR: All right, well I just want to put that aside, so what do I say about that?
152 MS WALTON: If it can just be recalled, Your Honour.
153 HER HONOUR: Yes.
154 MS WALTON: And perhaps Your Honour could put a cross through it.
155 HER HONOUR: Yes, I recall the - - -
156 MS GARNER: As Your Honour pleases.
157 MS WALTON: This is the original. We must have had two copies provided, so I'll hand them all up so we have copies.
158 HER HONOUR: Yes, thank you. Thanks, all right, well I will formally recall the warrant to arrest that I signed just before lunch, or thereabouts, I can't remember when, earlier today.
159 MS WALTON: Thank you, Your Honour.
160 HER HONOUR: I made it clear to him that they can use reasonable force.
161 MS WALTON: Thank you.
162 HER HONOUR: All right, Mr Rooney, four months, then you are on the CCO.
163 OFFENDER: Yes, Your Honour.
164 HER HONOUR: As I said, you went in at the deep end.
165 OFFENDER: (Indistinct).
166 HER HONOUR: Your next appointment with me is in a years' time. If I see you before then, not good. If I see you on that day and you have been doing well, that is fine. I will see you a year later perhaps. But if you see me any other time, not good, it means you have breached.
167 All right, anything else?
168 COUNSEL: No, Your Honour.
169 HER HONOUR: No, thank you both for your assistance. Thank you. All right, thank you, can you remove the prisoner please.
170 Thank you again.
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