Director of Public Prosecutions v Ryan
[2021] VCC 595
•12 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01498 & AP-19-0540
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB RYAN |
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JUDGE: | HIS HONOUR JUDGE D A SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2021 | |
DATE OF SENTENCE: | 12 May 2021 | |
CASE MAY BE CITED AS: | DPP v Ryan | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 595 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Plea of guilty - Arson and associated offences; Attempted carjacking and associated offences; Remorse; Youthful offender
Legislation Cited: Sentencing Act 1991;
Cases Cited:DPP v Derby (2007) 171 A Crim R 302; Martin v The Queen [2015] VSCA 248; The Queen v Verdins (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Jacob Ryan, you have pleaded guilty to an indictment containing six charges:
(i) one charge of burglary, which carries a maximum penalty of 10 years' imprisonment[1]
(ii) two charges of theft, which carries a maximum penalty of 10 years' imprisonment[2]
(iii) one charge of arson, which carries a maximum penalty of 15 years' imprisonment[3]
(iv) one charge of attempted carjacking, which carries a maximum penalty of 10 years' imprisonment,[4] and
(v) one charge of intentionally damaging property, which carries a maximum penalty of 10 years' imprisonment.[5]
[1]Charge 1
[2]Charges 2 and 5
[3]Charge 3
[4]Charge 4
[5]Charge 6
2You have also pleaded guilty to two related summary offences:
(i) one charge of trespass, which carries a maximum penalty of six months' imprisonment, and
(ii) one charge of possess controlled weapon without lawful excuse, which carries a maximum penalty of 12 months' imprisonment.
3You have also admitted your criminal record.
4
As your criminal record makes clear, at the Melbourne County Court on
9 July 2019, on appeal from the Magistrates' Court, in relation to a number of dishonesty, bail, and driving offences, you were convicted and sentenced to a
12-month community correction order with various conditions. You have breached this order through non-compliance together with the commission of the offences which I have just described. Through your counsel at your plea hearing, you confirmed that the community correction order breach was admitted. That breach formed part of your plea proceedings before me on 17 March 2021.
Circumstances of your Offending
5The circumstances of your offending were set out in the summary of prosecution opening for plea dated 8 March 2021 (Exhibit A). That document sets out the factual basis of the offending for which you will be sentenced.
6Your offending can be briefly summarised.
7At the time of your offending on 16 September 2019 you were aged 22. At about 3.42 pm on this day, you were with your co‑offender, Thomas McDonald, then aged 21. You were both seen on CCTV footage behaving suspiciously near a property at 25 Toolern Waters Drive, Weir Views. An occupier of that address was seated in her vehicle in the garage with the door open, when you walked up the driveway and into the garage. You refused to leave the address until the occupant indicated that she was going to call the police. During this time, your co‑offender, Mr McDonald, was in front of the post box of this property, looking like he was tying his shoes. Your conduct in this regard forms the basis of the related summary offence of Charge 4, trespass.
8Shortly after this incident, you and Mr McDonald accessed the rear yard of a nearby property at 9 Toolern Waters Drive, Weir Views, by climbing over a fence. Together you smashed the main bedroom window of the residence located on the east side of the property and entered the house. Your conduct in this regard forms the basis of Charge 1 on the indictment, burglary with intent to steal.
9Once inside, you ransacked the property and gathered various belongings of your victim, Mr Mohammed Ali, which you placed in a bed sheet and a black suitcase obtained from the address. Your conduct in this regard forms the basis of Charge 2 on the indictment, theft of personal property, including electronic equipment, a motorcycle helmet, and computer games.
10One of you then retrieved a five litre red plastic jerrycan containing between two and three litres of unleaded petrol from the garage and poured it around the main bedroom before igniting it. Your conduct in this regard forms the basis of Charge 3 on the indictment, arson.
11Both of you left the address by the front door, holding the bed sheet and suitcase containing Mr Ali's property. Shortly afterwards, witnesses observed smoke coming from the address. You both ran west on Toolern Waters Drive before jumping a fence to gain access to the rear yard of 19 Toolern Waters Drive, and then jumped the side fence into Shackell Street. CCTV footage captured you placing the sheet containing some of the property of Mr Ali's in the driveway of 3 Shackell Street, whilst your co‑offender, Mr McDonald continued on Shackell Street with the suitcase of stolen goods. You both then left the immediate area.
12Numerous fire appliances were required to attend to extinguish the fire at Mr Ali's property. The fire caused extensive damage to the premises. The property was insured, and the estimated claims cost in relation to the damage was $224,303.20. Virtually all of Mr Ali's personal property was either destroyed or damaged by the fire or stolen.
13A few hours later, at approximately 6.30 pm, your victim in relation to Charges 4, 5 and 6 on the indictment was working as a courier driver, picking up deliveries in his brown Kia vehicle. At approximately 6.40 pm, he was waiting to turn left into Micks Road, Melton, as you and Mr McDonald were crossing Micks Road. Once you both crossed the road, your victim commenced his turn. As he drove past the two of you, he observed in his mirror Mr McDonald used something in his hand to scratch the vehicle on the passenger side. Your victim stopped his vehicle and put down the front passenger window and asked Mr McDonald why he had scratched his car. Mr McDonald denied doing so and told your victim to come and have a look. Your victim parked his vehicle and exited to inspect the damage, leaving the keys in the ignition when he did so.
14As he was inspecting the damage, you got into the driver's seat of your victim's vehicle and shouted to Mr McDonald to get in the car. Your victim ran back to the driver's side of the vehicle, where the driver's door was still partially opened, and he started to fully open the door so he could retrieve the car keys to prevent the vehicle from being stolen. You began kicking your victim to the torso. Despite your efforts, your victim managed to reach in and turn the vehicle off and remove the keys, before running from his vehicle and yelling for assistance. Your conduct in this regard forms the basis of Charge 4 on the indictment, attempted carjacking.
15You and Mr McDonald then rummaged through the vehicle and stole various items: an iPhone, PDA parcel tracker, Star Track ID and an access card and access key. Your conduct in this regard forms the basis of Charge 5 on the indictment, theft.
16You and Mr McDonald then ran from the vehicle. However, you immediately returned and used a knife to puncture a tyre on your victim's vehicle before running off. Your conduct in this regard forms the basis of Charge 6 on the indictment, criminal damage, and the related summary offence of Charge 9 possess a controlled weapon without lawful excuse.
17After you and Mr McDonald had fled the scene, your victim used another person's mobile phone to call triple zero and reported the matter to police.
18Subsequent police and forensic investigations revealed the cause of the fire to Mr Ali's property to be the ignition of combustible materials such as bed, bedding or carpet in the main bedroom, assisted by the presence of petrol. A cigarette lighter was located in the rear of the property. A white Adidas jacket, which you had been seen wearing in CCTV footage during your offence at 25 Toolern Waters Drive, was located in a bucket in the garage of Mr Ali's property. DNA analysis in relation to the cigarette lighter revealed you to be the likely major contributor.
19One week later, on 23 October 2019, you were arrested, as was your co‑offender, Mr McDonald. You were interviewed by police in relation to these offences, essentially denying any knowledge of Mr McDonald, and denying any knowledge of the offending, although later in the interview you admitted being in photos from the CCTV footage and that you must have done something wrong.[6]
[6]Transcript of Interview questions 466 to 471
20You were remanded in custody on 23 October 2019 and have remained in custody since that date, a total of 612 days pre‑sentence detention up to but not including today. This figure including time spent in custody in relation to the community correction order breach.
Impact on Victim
21Your victim in relation to Charges 1, 2 and 3 on the indictment, Mr Mohammed Ali, completed a victim impact statement on 6 October 2020, which was tendered at your plea hearing and read to the court (Exhibit B).
22In that heartfelt statement, Mr Ali indicated that he felt violated in his own home, a place where he used to feel safe. He indicated that he is now consumed with anger and anxiety since the offending and confused as to why this has happened to him. Since the offending, he has been unable to sleep and remains constantly hypervigilant. As a result of the incident, he has left Victoria, having only recently moved to Victoria, and had not obtained insurance on his personal possessions at that time. Mr Ali indicates:
“Following this horrific event, I had to move in with my sister in New South Wales which meant I had to leave my job in Victoria and was unemployed for (sic) few months. ... I lost my independence and everything I worked so hard to achieve.”
23It is clear from Mr Ali's statement that your offending has had significant adverse consequences for him. Victim impact statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the consequences of offending on them. I have taken into consideration the victim impact statement made by Mr Ali as one of the relevant sentencing factors, in formulating an appropriate sentence in your case.
Nature and Gravity of Your Offending
24Arson is a serious crime, carrying with it a maximum penalty of 15 years' imprisonment. The damage to and destruction of a home by arson carries with it great risks for nearby buildings, their occupants, and those members of our community who put themselves at risk by serving in emergency services. It is clear from the authorities that except in the most exceptional circumstances, a sentence of immediate imprisonment will be appropriate.[7] General deterrence will generally loom large as a sentencing consideration for the crime of arson.[8]
[7]DPP v Derby (2007) 171 A Crim R 302 at [21]
[8]Martin v The Queen [2015] VSCA 248 at [26]
25Burglary is frequently committed in conjunction with the crime of arson, as it was in your case. In company, you broke into Mr Ali's property, ransacked it, and used an accelerant to start a fire in the main bedroom before leaving the property. The property was extensively damaged. This is, in my view, a concerning example of the crime of arson. Adding to the gravity of your conduct, you stole a significant amount of personal property belonging to Mr Ali, no doubt accentuating the degree of loss experienced by him through your offending. Your offending behaviour in relation to Charges 1, 2 and 3 on the indictment, burglary, theft and arson, was in my view serious, callous, and obviously inherently dangerous.
26Shortly prior to this incident you illegally trespassed at another property nearby. Clearly, you had no legal entitlement to enter this property. Given your subsequent criminal behaviour, you were likely exploring the potential for some form of criminal behaviour when you walked up the driveway of 25 Toolern Waters Drive and entered the garage, with your co‑offender outside that property.
27Soon after the arson incident, again in company with Mr McDonald, you engaged in separate serious criminality. Whilst I cannot be satisfied beyond reasonable doubt that the actions of your co‑offender, Mr McDonald, in scratching the vehicle of the courier driver, were part of a planned criminal endeavour in an attempt to steal your victim's vehicle, at the very least you opportunistically sought to steal your victim's car. He was simply going about his business as a courier driver at the time. When your victim understandably remonstrated with you in an attempt to prevent his car being stolen, you kicked him to the torso. Thankfully, your efforts to steal the vehicle were in vain, as your victim managed to turn off the vehicle, remove the keys, and leave the immediate area. Nevertheless, your conduct in relation to this attempted carjacking was deplorable. For the reasons I have outlined, your conduct represents a concerning example of the offence of attempted carjacking.
28After essentially rummaging through your victim's vehicle and stealing various items, including those connected with your victim's employment, you left the vehicle. However, your conduct in returning to the vehicle and using a knife to puncture a tyre, before running off, represents, in my view, gratuitous and vengeful behaviour. You had already tried to affect a theft of your victim's car through the use of violence, before stealing various personal items. Rather than reflecting on your criminality, you chose to extend and accentuate it through this subsequent shameful behaviour.
29As I earlier indicated, your offending took place just a few short months after your appearance at the Melbourne County Court on an appeal against sentence from the Magistrates' Court for offences including burglary, theft of motor vehicle, and handling stolen goods, where you received a 12‑month community correction order with conditions which included undertaking 150 hours of unpaid community work, supervision, and treatment and rehabilitation for drug and alcohol abuse issues. By the time you committed the offences on 16 September 2019, as set out in the breach material related to the contravention of community correction order matter, you had failed on multiple occasions to be supervised, and you had failed to undergo treatment and rehabilitation as directed.
30In my view, the commission by you of your serious criminality on 16 September 2019 is made more serious by virtue of the fact that you were then subject to a County Court community correction order with the conditions as I have described them.
Your Level of Responsibility and Culpability
31Having regard to your role in the offending, and your level of culpability in comparison with your co‑offender Mr McDonald, I am unable to conclude beyond reasonable doubt that you played a more prominent role in the arson incident, or that you essentially led Mr McDonald in relation to this offending. Nevertheless, I regard your involvement in this incident as substantial and significant.
32Furthermore, you are to be sentenced on the basis that you were solely responsible for the trespass incident, your co‑offender Mr McDonald not facing this charge.
33In relation to the subsequent incident involving the courier driver, whilst the conduct of your co‑offender Mr McDonald triggered the incident when he damaged the courier's car, I regard your level of culpability for the actions that followed to be significant. When your victim exited his vehicle, you got into the driver's seat and shouted out to Mr McDonald to get in the car. When your victim attempted to remonstrate, you physically attacked him in order to facilitate the attempted carjacking. Even after the theft of personal items had been effected following your unsuccessful attempts to steal the courier's car, your conduct in returning to the vehicle and using a weapon to puncture a tyre is reflective, in my view, of your high level of culpability.
Personal Circumstances
34You were born in Melbourne and raised in the Sunbury area by your mother and stepfather, your parents having separated prior to your birth. You grew up believing your stepfather was your biological father, and you did not meet your father until you were aged nine. He is a man who apparently had his own difficulties with regards to heroin addiction in excess of 20 years ago. Upon learning of your biological father you commenced a limited relationship with him, initially through intermittent supervised contact, which slowly increased over the years. By the time you had turned 12, you were spending some time overnight with both of your parents. From the age of 12 to 15 you lived back and forth between your parents. You apparently struggled with your stepfather for a period, feeling that your stepfather favoured your half-sister.
35According to the report[9] from psychologist Gina Cidoni dated 1 March 2021 (Exhibit 2), you began using cannabis and methylamphetamine (Ice) at the age of 13, in the context of your older friends using these drugs. Your use was sporadic until the age of 15, when it became regular. You have also reported using heroin from the age of 17 and also experimenting with GHB from the age of 18.
[9] Gina Cidoni, Psychological Assessment Report (1 March 2021), 36
36You apparently were asked to leave home from the age of 15 due to your use of Ice, together with the sedative Xanax. Sadly, your drug use increased once you left home and you had no supervision or accountability to your parents.
37In some respects, despite your drug use, you have been able to engage in pro‑social pursuits. Between the ages of 16 and 19 you started and completed a plumbing apprenticeship, with your employer not only giving you a job but also providing you with a room to stay in his own house. You also managed to play football, playing for the Sunbury Lions and then also representative football with the Calder Cannons, ultimately stopping at the age of 20 when you injured your shoulder.
38Significantly, despite your ongoing use of Ice in particular, you did not accrue any prior findings of guilt or convictions until 2017.
39You apparently had your first serious relationship from the year 2016, when you were 19 years of age. You were together for some two years, during which time your partner had her own problems with alcohol and drugs. That relationship ended in late 2018, with you taking the breakdown very hard, and this triggered a significant increase in your drug use. Due to your increased drug use, you lost your job, could not afford to pay your rent, and were homeless, finding yourself couch-surfing and engaging in theft-related offending to fund your drug addiction. In that regard, I note that the offending which resulted in the imposition of the community correction order on 9 July 2019 occurred in January 2019. You spent some 45 days on remand in relation to those offences before ultimately receiving the community correction order.
40In the period immediately preceding your current offending, you had moved in with your biological father. This occurred after you received your community correction order on 9 July 2019. Clearly, you did not commence well on that largely therapeutic order. I am satisfied that the offending for which you now fall to be sentenced occurred in the context of your problematic polysubstance abuse history and general life instability.
41During your assessment with psychologist Gina Cidoni, you said that your offending occurred in the context of heavy drug use and poor coping from the breakdown of your relationship.[10] You also indicated to Ms Cidoni that your mental health had suffered following that relationship breakdown. You had attended a few sessions of counselling and had been prescribed the anti-depressant escitalopram, which continued until your arrest.[11]
[10]Gina Cidoni, Psychological Assessment Report (1 March 2021), 13
[11]Gina Cidoni, Psychological Assessment Report (1 March 2021), 34
42According to Ms Cidoni, you met the diagnostic criteria for substance use disorder, and, due to your maladaptive reaction to your relationship breakdown, an adjustment disorder.[12] According to Ms Cidoni, you were severely drug-affected during the offending, you indicating to Ms Cidoni that you had taken 10 Xanax while on a self-destructive course. Unsurprisingly, due to your ingestion of Xanax and in the context of your broader polysubstance issues, your memory of the offending is limited.
[12]Ibid paragraph 48
43As discussed at your plea hearing, in my view your background issues, maladaptive reaction to your relationship breakdown, and polysubstance issues, provide context and background to your offending, rather than warranting any reduction in your moral culpability for your offending pursuant to the well-known mental impairment, or Verdins,[13] principles.
[13]The Queen v Verdins (2007) 16 VR 269
Sentencing Factors
44Section 5(2) of the Sentencing Act 1991 requires me to have regard to various factors in formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and gravity of your offending, your level of responsibility and culpability for it, the impact on your victim, and your previous character.
Plea of Guilty
45Having been arrested on 23 October 2019, your matter resolved to a plea of guilty on 30 October 2020, prior to the listed date for a committal hearing on 11 November 2020, noting that the matter had been substantially delayed throughout 2020 in the context of the COVID‑19 pandemic. I am satisfied in all the circumstances that your plea of guilty was relatively early in these criminal proceedings, and that you are therefore deserving of a sentencing discount for the early plea. As noted by your counsel, whilst your plea of guilty was at a slightly later stage in proceedings than your co‑offender, Mr McDonald, he in contrast to you ran a contest and did not plead guilty to the attempted carjacking allegation. Your pleas of guilty spared any witnesses being cross-examined at a committal hearing and saved the Court and the community the cost and delays associated with contested proceedings. Your pleas of guilty reflect an acceptance of wrongdoing on your part and a willingness to facilitate the course of justice. Your resolution of this matter to pleas of guilty occurred within the context of the COVID‑19 pandemic which has had significant consequences on the administration of criminal justice in this state. As the authorities made clear, your plea of guilty in these circumstances has substantial utilitarian value, warranting a significant sentencing discount.
Remorse
46I am also satisfied that a further sentencing discount is warranted on the basis of your remorse. Your plea of guilty is capable of indicating remorse in the circumstances of your case. Psychologist Gina Cidoni in her report indicated that in her view, you were 'genuinely remorseful'.[14] I am also satisfied that the positive changes that you have made whilst on remand reflect your awareness of your wrongdoing and your desire to rehabilitate yourself, a matter which in my view also is reflective of your remorse. In your assessment with Stephen Miriklis from Sunshine Community Correctional Services for the purposes of the extended pre-sentence assessment outcome report dated 22 April 2021, you were noted as being remorseful and emotional at times when recounting your offending behaviour. On that note, whilst you appeared to deny assaulting your victim in relation to the attempted carjacking, I take the context of this denial to be your ingestion of Xanax which on your own admission has prevented you from having a complete memory of your offending behaviour. Significantly, according Mr Miriklis, you presented as remorseful and acknowledged your offending behaviour, presenting with victim remorse and empathy. When speaking with Mr Miriklis, you stated, 'When the victim impact statement was read out, it just killed me and made me emotional. I realised that I'd ruined people's lives. I wish they could see me now but it's too late. If I could take it back I would. I couldn't imagine the impact (on the victims) if it was my family'.[15] According to Mr Miriklis, you became emotional when discussing victim empathy. Particularly given your young age and personal circumstances, your ability to express remorse for your serious offending behaviour stands to your credit. Genuine remorse is reflective of rehabilitation and lessens the need for any sentence to give effect to the sentencing purposes of specific deterrence and community protection. A further sentencing discount is therefore warranted.
[14]Gina Cidoni, Psychological Assessment Report (1 March 2021), 51
[15] Stephen Miriklis, Extended Pre-Sentence Assessment Outcome Report (22 April 2021) 5
Youth
47You are currently 24 years of age. You were 22 as at the date of your offending. Accordingly, you fall to be sentenced as a young person. As the authorities make clear, due to your relatively young age, rehabilitation should be afforded significant weight in the sentencing exercise. This is so, particularly when a young person is showing signs of rehabilitative progress and is beginning to appreciate the wrongfulness of his behaviour.
Time in Custody
48You have now been in custody since 23 October 2019, and in relation to the CCO breach matter, a further/earlier period of 45 days, amounting to a total period of 612 days. I accept that for a young person, this is a significant period of incarceration. You have spent a significant proportion of your remand time in the context of the extraordinary COVID‑19 pandemic. As a result of the pandemic, for a significant period of time all personal visits were suspended and there were significant restrictions with regards to freedom of movement, access to employment and therapeutic programs. I have also had regard to a recent Governor's order from Ravenhall prison dated 17 April 2021, indicating an order for your separation and quarantine in the context of the COVID-19 pandemic (Exhibit 12) as an example of the hardships endured by you in custody due to COVID-19. I have no doubt that these restrictions have exacerbated the hardship of this period of custody for you. Like all prisoners, you have had to live with the anxiety associated with the likely consequences of COVID-19 entering the custodial setting. As the authorities make clear, a mitigatory allowance is warranted due to the COVID‑19 pandemic and its impact on your time in custody.
49Notwithstanding these hardships, I am satisfied that you have used your time productively whilst in custody, which is a matter standing to your credit, and augers well in terms of your prospects of rehabilitation. You have been on remand at Ravenhall. With a justifiable degree of pride, you have explained that you have obtained the coveted position of head cleaning billet in isolation for the last 12 months, a highly trusted position offered only to compliant prisoners. You reported to Mr Miriklis from Corrections that you have completed several programs with regards to personal growth and development. You have found these programs together with your time in custody overall to have been a sobering experience which has allowed you to reflect on your offending behaviour and the impact of your offending on your victims, family and friends. You stated to Mr Miriklis, 'I have done every course I can do in here and together with the counselling my personal development has been second to none'. In relation to your positive progress whilst in custody, I have had regard to the letter from Ravenhall confirming programs undertaken, a bundle of certificates from Kangan Institute in that regard, a certificate of completion from Relationships Australia, a certificate of completion from Forensicare and a bundle of urine screens completed whilst in custody, Exhibits 5 to 9 from your plea hearing. I have also had regard to the letter dated 29 April 2021 from Ravenhall clinician Alessia Mattia confirming the various programs and counselling undertaken by you (Exhibit 10) and the most recent urine screen from 22 April 2021 (Exhibit 11). With respect I agree with the sentiments articulated by Mr Miriklis from Corrections, that you are 'To be credited for the responsive engagement since being remanded into custody'.[16]
[16] Stephen Miriklis, Extended Pre-Sentence Assessment Outcome Report (22 April 2021) p3
Prospects of Rehabilitation
50You have plans to live and work with your father upon your release from prison. Your father lives in Geelong with his other children and owns his own concrete business. In that regard I have considered the letter from your father, Bradley Packard, dated 14 February 2021 (Exhibit 3), confirming the availability of accommodation and employment at a Geelong based concrete company where Mr Packard works. Today, your counsel confirmed that your father has recently continued daily telephone contact with you, he can pick you up from prison upon your release and take you to his family home where there is a bedroom setup awaiting you. There is work available essentially immediately at the concreting business, and Mr Packard can assist with transport to and from your various commitments. I have also had regard to the positive character reference from your uncle, John Ryan (Exhibit 4). Mr Miriklis in his extended pre-sentence report also refers to the support of your father, who apparently does not tolerate the abuse of illicit substances. Mr Miriklis also referred to your desire to rebuild your familial relationships, in particular with your mother, Amber. In all the circumstances, notwithstanding your difficult history and the severity of your offending, due to your youth and positive progress whilst on an extended period of remand, and given the sentiments expressed by Mr Miriklis in his pre-sentence report, I am satisfied that with appropriate specialist interventions upon your release from prison, your prospects of rehabilitation are favourable.
Applicable Sentencing Purposes
51The prosecution in this case have appropriately submitted that general and specific deterrence, denunciation and just punishment as well as rehabilitation are all important sentencing considerations in this case. Particularly in relation to the arson offence, there is a need for any sentence I impose to deter not only you but other like-minded offenders from considering engaging in such serious offending.
52In this matter, I have also carefully considered the detailed prosecution submissions on sentence, both orally and as contained in the submissions document dated 16 March 2021 in relation to the gravity of the offence of arson in particular. In that regard I have read and considered the comparable cases relied upon by the prosecution, on the issue of current sentencing practices.
53In formulating an appropriate sentence in your case, I have also considered the principle of parity with regards to your co‑offender, Mr McDonald. The issue of parity is complicated in this case for a number of reasons. Whilst you are both young men, Mr McDonald's personal background is more disadvantaged than yours, and particular sentencing principles therefore apply to him. Mr McDonald's criminal history is more serious than yours. The charges faced by Mr McDonald were slightly different to yours, as were the circumstances of those charges, in particular the criminal damage charges. Whilst in my view you played a more significant role with regards to the attempted carjacking, in contrast to Mr McDonald you pleaded guilty. In contrast to Mr McDonald, you also face a breach of community correction order charge. For these reasons, a measure of disparity is warranted in this case, though in my view the disparity is not extremely significant. Given the number and nature of the offences to which you have pleaded guilty, there is a need in my view for any sentence imposed to incorporate a degree of cumulation to reflect the distinct criminality, subject to the overriding principle of totality.
54Ultimately, your counsel submitted that all of the competing sentencing factors and purposes could be reconciled through a combination sentence of imprisonment and an appropriately tailored community correction order. The prosecution submitted that although the objective gravity of the offending was serious, a period of imprisonment coupled with a lengthy community correction order would be within range.
Sentence to be Imposed
55Mr Ryan, I now come to the portion of my remarks where I announce the sentences on you. You are accordingly sentenced as follows. In relation to Charges 1, 2 and 3 on the indictment, burglary, theft and arson, those offences forming part of a series of offences of a similar character, you are convicted and sentenced to an aggregate sentence of 14 months imprisonment. In addition, I order you to complete a community correction order, the details of which I will shortly outline.
56On Charge 4 on the indictment, attempted carjacking, you are convicted and sentenced to 6 months imprisonment.
57On Charge 5 on the indictment, theft, you are convicted and sentenced to 5 months imprisonment.
58On Charge 6 on the indictment, criminal damage, you are convicted and sentenced to 4 months imprisonment.
59In relation to the related summary offence of trespass, you are convicted and sentenced to 2 months imprisonment.
60On the related summary offence of possess controlled weapon without lawful excuse, you are convicted and sentenced to 1 month's imprisonment.
61In relation to the breach of community correction order, the order is cancelled and you are re-sentenced to an aggregate sentence of 6 months imprisonment.
62
The 14 months' imprisonment imposed as an aggregate sentence on Charges 1, 2 and 3 on the indictment is the base sentence. I order that 1 month on
Charge 4 (attempted carjacking), 1 month on Charge 5 (theft), 1 month on Charge 6 (criminal damage), 14 days on the trespass charge, and 3 months on the breach of community correction order re-sentencing, be served cumulatively upon each other and upon the base sentence of 14 months, making a total effective sentence of 20 months and 14 days imprisonment.
63Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 567 days together with a period of 45 days imprisonment referable to the community correction order matter, as having been served by way of pre‑sentence detention. This makes a total pre‑sentence detention figure of 612 days. I order that this amount be deducted from the sentence imposed. For the sake of clarity, it is my estimation that the pre-sentence detention figure is a matter of some two days short of the total effective sentence that I have just announced. It is my intention that Mr Ryan be released within a matter of days to commence the community correction order that I have imposed in relation to Charges 1, 2 and 3 on the indictment.
64In relation to the community correction order imposed in addition to the 14 months imprisonment with regards to Charges 1, 2 and 3 on the indictment, the terms and conditions of the community correction order are as follows:
65The duration of the order will be 2 years. The order will commence upon your release from prison, which as I have stated, I calculate to be in a matter of days.
66In addition to the core conditions, you will be subject to the following additional conditions:
· you will be required to undertake and complete 100 hours of unpaid community work
· you will be subject to treatment and rehabilitation with regards to drug abuse or dependency
· you will be subject to treatment and rehabilitation with regards to mental health
· you will be subject to treatment and rehabilitation with regards to programs to reduce offending
· you will be supervised for the duration of the order
· I am imposing a non-association condition. That is, you will be prohibited from associating with your co-offender, Mr McDonald
· you will also be subject to judicial monitoring – with the first judicial monitoring hearing to take place in two months' time. I will provide that date shortly.
· pursuant to s48CA(2) of the Sentencing Act 1991, I declare that 50 hours performed with regards to the treatment and rehabilitation conditions may be counted towards fulfilment of your unpaid community work hours
67Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a total effective sentence of 4 years imprisonment, with a non-parole period of 3 years.
68Mr Ryan, can I have Mr Ryan unmuted please.
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: Yes, you can see and hear me all right?
71OFFENDER: Ah, yes, I can.
72HIS HONOUR: I want to be clear with you the intention of my sentence today, it is a relatively complex one given the number of charges and the way they interrelate with each other. Essentially what I have done is I have imposed a term of imprisonment combined with a community correction order in relation to the arson incident if I can refer to it in that way, plus discrete sentences of imprisonment in relation to the other offences but taking into account the significant time you have already spent in custody, it is my estimation that you are some two days short of your release. And I may be a day or two out there and there are other aspects in terms of emergency management days. I have read the most recent letter but it is a matter for the authorities. But it is my intention that you be released imminently, that is within a few days to start on this community correction order, do you understand that so far?
73OFFENDER: Ah, yes, Your Honour.
74HIS HONOUR: In terms of the order itself and you have been on an order before, albeit you breached it so you should have some understanding in relation to the order. I need to make sure that you understand what is involved in this CCO because I cannot impose it unless you agree to comply with it and you cannot agree to comply with it unless you know what the order involves. So, the order will start immediately upon your release, meaning that you will have to report in, I believe it must be Sunshine - where are you planning to live, what suburb?
75OFFENDER: Ah, Geelong in Thomson in Geelong.
76HIS HONOUR: Yes. Yes. So, it will be Geelong Community Correctional Services, that needs to be amended, within two clear working days after you are released from prison essentially. The order is going to run for two years. There are a number of mandatory terms that apply to all CCOs and they include things like you must not commit another offence punishable by jail during the order, you must comply with any obligations or requirements, you must report to and receive visits. You must let a Corrections officer know within two working days of you changing address or job. You cannot leave Victoria without first getting permission and you must obey all lawful instructions of Corrections, do you understand those conditions so far?
77OFFENDER: Yes, Your Honour.
78HIS HONOUR: In addition, there are conditions which are specific to you. You will have to perform 100 hours of unpaid work over the next two years. You will have to be supervised by Corrections, which means regular appointments with Corrections. You have a number of treatment and rehabilitation conditions so you must undergo assessment and treatment including testing for drug abuse or dependency as directed. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed. And you must participate in programs or courses that address factors relating to the offending as directed.
79In relation to that last condition, it is a matter for Corrections but there are offender behaviour programs specifically related to fire setting or arson so they are what we call treatment and rehabilitation conditions. Fifty hours spent on those conditions can be counted on the 100 hour unpaid community work condition. You must also not associate with Mr McDonald for the duration of the order. And, finally, you must attend for judicial monitoring review hearings, the first of which will be in two months time, I will give you the date shortly.
80What that means, Mr Ryan is this, that in two months time and indeed regularly after that, you will have an appointment with me and I will receive an update report from Corrections. And if there are any problems, I will know quickly if there are any problems and what they are. So, you are going to be accountable directly to me in terms of your progress on the order. Be under no illusions, if you breach this order, the high likelihood is that you will go back into custody. This is serious offending. I have made a decision to let you out so that you can get cracking on your rehabilitation so to speak. Please do not muck it up. If you do, you will find that I will not perhaps be as pleasant on a breach hearing because I will regard it as a serious matter. Do you understand that?
81OFFENDER: Ah, yes, I do, Your Honour.
82HIS HONOUR: Do you understand what is involved in the CCO?
83OFFENDER: Ah, yes, I do.
84HIS HONOUR: If you breach the order through non-compliance, that is not turning up to appointments or re-offending, you can be punished separately for the breach and the breach carries the possibility of a jail term and you can be re-sentenced in relation to all of this offending again. So, knowing all of that, do you agree to comply with the community correction order?
85OFFENDER: Ah, yes, I do, Your Honour.
86HIS HONOUR: All right, that order will be in due course sent through to you at the prison for signing. I will just obtain a judicial monitoring review date in two months time. Tuesday, 27 July at 9.30 am will be the first judicial monitoring hearing.
87UNIDENTIFIED SPEAKER: Tuesday - - -
88
HIS HONOUR: All right, now, thank you, we will just mute Mr Ryan again.
Mr Buckland, I am sure you have been following the construction of that sentence carefully. Any issues from your perspective? I have calculated 614 days on the sentence with 612 days pre-sentence detention. I may be a day or two off in terms of months and the like but that is my intention in terms of sentencing. Any issues?
89MR BUCKLAND: No, there are no issues with that, Your Honour.
90HIS HONOUR: Have I missed anything in terms of any other orders that are sought?
91MR BUCKLAND: There was a, I believe a forfeiture order.
92HIS HONOUR: Yes.
93MR BUCKLAND: A cigarette lighter with some clothing essentially.
94HIS HONOUR: Yes. I have a note that that order is - that application is unopposed Mr Cronin, is that correct?
95MR CRONIN: That is correct, Your Honour, thank you.
96HIS HONOUR: Yes, well I make that forfeiture order in relation to the items listed in the schedule. Anything else from you, Mr Buckland?
97MR BUCKLAND: No, thank you, Your Honour.
98HIS HONOUR: Mr Cronin, is the sentence clear to you?
99MR CRONIN: It is, Your Honour. The only thing that I did not catch was the date for the judicial monitoring, if I could just get that so I can make a note for it.
100HIS HONOUR: Sure. I have managed to lose that - no, 27 July at 9.30 am. It is a Tuesday.
101MR CRONIN: Thank you, Your Honour.
102HIS HONOUR: The parties can - well, Mr Ryan can appear remotely. If the progress report is favourable, there would be no need for counsel or indeed the legal representatives to appear. I am happy to deal directly with Mr Ryan but of course anyone is welcome to be involved in a judicial monitoring hearing and if there are problems with monitoring the parties will be advised in terms of hearing requirements.
103MR CRONIN: Thank you, Your Honour.
104MR BUCKLAND: Your Honour, just before we go - - -
105HIS HONOUR: Yes. Yes.
106MR BUCKLAND: - - - so can I - Your Honour just reminded me, I should have just checked any addition of the cumulation periods.
107HIS HONOUR: Yes.
108MR BUCKLAND: Can I verify what they are?
109HIS HONOUR: Sure.
110MR BUCKLAND: Because I am coming to 19 months, 14 days, so I must have missed something.
111HIS HONOUR: All right, so the 14 months in the base.
112MR BUCKLAND: Yes.
113HIS HONOUR: So, one month - the cumulation is as follows. One month on Charge 4, one month on Charge 5. One month on Charge 6.
114MR BUCKLAND: That is what I missed, Your Honour.
115HIS HONOUR: All right, 14 days on the trespass and three months on the breach, so that is six months and - - -
116MR BUCKLAND: Yes. That does come to 20 months - - -
117HIS HONOUR: - - - 14 - yes. Excellent.
118MR BUCKLAND: - - - and 14 days. Thank you, Your Honour.
119HIS HONOUR: Thank you very much. All right, thanks. If you could just unmute Mr Ryan once more. Thanks, Mr Ryan, I sincerely hope that you grab this opportunity with both hands and that when I see you at the end of July, it is a good news story so to speak. It is my experience that people need to start these orders in the right direction. If they do not, it can be problems from the get-go. So, I wish you well in terms of your rehabilitative progress, your release from prison after a substantial period of time in custody and I hope and trust that you concentrate on living with your father, working and most importantly complying to the letter with this CCO and I will see you in two months time.
120OFFENDER: Yes, Your Honour. If I could just ask David a question, is that okay, Your Honour?
121HIS HONOUR: What I might do is I might stand down and allow you to speak privately with your barrister over the video if that is all right with you - - -
122OFFENDER: Thank you, Your Honour.
123HIS HONOUR: - - - so that you can have some privacy. You are all right with that, Mr Cronin?
124MR CRONIN: Yes. Thank you, Your Honour.
125HIS HONOUR: Thanks. Thanks..
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