Director of Public Prosecutions v Sale
[2018] VCC 145
•27 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02144
Indictment No. E12632885
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK SALE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2018 | |
DATE OF SENTENCE: | 27 February 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Sale | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 145 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of aggravated burglary – one charge of theft
Legislation Cited: Crimes Act 1958, s77(1), s74(1); Sentencing Act 1991
Cases Cited:Director of Public Prosecutions v Meyers (2014) 44 VR 486; Hogarth v R (2012) 37 VR 658; Gale v R [2014] VSCA 168; Filiz v R [2014] VSCA 212; Anderson v R [2014] VSCA 255; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; R v Verdins & Ors (2007) 16 VR 269; R v Mills (1998) 4 VR 235; Bradshaw v R [2017] VSCA 273; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 308
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Churchill | John Cain Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G Barns | James Dowsley & Associates |
HIS HONOUR:
1 Mark Sale, you have pleaded guilty to the following offences:
(a) Charge 1
2 That you, at Hampton Park in Victoria, on 26 February 2014, entered as a trespasser, a building known as the rear bungalow at 18 Robjant Street with intent to steal, and at the time of entering, you had with you a firearm, or imitation firearm, and at the time of entering, a person was then so present in the building and you knew that a person was then so present, or was reckless as to whether or not a person was then so present.
3 The offence of aggravated burglary is contrary to s.77(1) of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment.
(b) Charge 2
4 That you, at Hampton Park in Victoria, on 26 February 2014, stole certain money, an Apple MacBook Pro laptop, an iPhone 4S mobile phone, an iPhone 4 mobile phone, an Apple iPod and a pair of canvas shoes belonging to Aaron Henry Patrick Bux and Shelby Jacobs.
5 The offence of theft is contrary to s.74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Circumstances of the offending
6 The prosecution has provided a document headed, “Summary of Prosecution Opening for Plea”, which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 2) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
· You were born on 22 September 1992 and was 21years of age at the time of the offending. You are now 25 years old.
· On Wednesday, 26 February 2014, the two complainants, Aaron Bux and Shelby Jacobs, were asleep in the rear bungalow of Bux’s father’s house in Hampton Park.
· Ms Jacobs was awoken by the sound of the gate opening and she brought it to the attention of Mr Bux and asked him to get up.
· A short time later, there was a knock on the bungalow door, after which Bux got out of bed to open the door. When the door was opened, he saw you standing in front of him holding a gun in your right hand.
· You pointed the gun towards Bux and told him to, “Get the fuck back” and to shut up and do what he was told. Bux moved inside and he sat on the bed, after which you made demands for the complainants’ phones and laptop and Bux told you to search and take anything you found.
· Three unknown males, wearing facemasks, followed you inside the bungalow. One of those males was in possession of a knife which was passed around the group.
· You picked up a pair of scissors and threatened to stab Bux with them. You and the other three offenders searched the bungalow and took possession of various items, including the following:
§ Two mobile phones, an iPhone 4 and an iPhone 4S
§ One iPod
§ One iPad
§ One laptop
§ A pair of shoes.
· As you and the other three offenders took possession of the various items and were attempting to leave with them, Bux started yelling for his father, after which all of you left the premises and ran towards a Holden commodore that was parked outside.
· Through various investigations, including observing postings on Facebook and the tracking of the stolen phone, a search warrant was executed on you in Lynbrook on 20 March 2014 and no items of evidentiary value were located. On the same day, you were interviewed at the Narre Warren Police Station and denied committing any of the offences.
· On 24 March 2014, both complainants were shown separate photo boards in order to identify you. Ms Jacobs identified you in one of two photographs (the one bearing your picture) and Mr Bux identified you, saying, “I’d say like that, I remember the dark face”.
· On 3 June 2016, you attended at the home of Graeme Bux, the father of Aaron Bux, one of the complainants. After he opened the door, and identified himself, you then apologised for your involvement in the offending. Shortly after you left, the daughter of Graeme Bux brought out photographs of you, and Graeme Bux identified you.
7 Counsel for the prosecution noted:
(a) Although the complainants had been advised of their right to make victim impacts statements, none were available;
(b) As at the date of the plea hearing you have served no pre-sentence detention; (you were remanded following the plea hearing)
(c) The prosecution are unable to say whether the gun held by you was a firearm or a replica;
(d) That there had been a significant delay in this matter through no fault of the Crown, who initially filed a hearing returnable on 15 August 2014. You failed to appear, and a warrant was issued which was returnable on
16 December 2015, when you were bailed on certain conditions. A committal was held on 5 December 2016, and you were committed to trial. On 15 August 2017, there was a directions hearing where it was noted that the matter was “resolvable”, and, seemingly, you were arraigned on
29 August 2017 when you pleaded guilty to the offences.
Your criminal history
8
The prosecution tendered your criminal record (Exhibit 1). I note that on
15 April 2011, at the Dandenong Magistrates’ Court, you were found guilty of recklessly causing injury, theft from shop (shop steal), learner driver driving vehicle without experienced driver, driving without “L” plates displayed, and using an unregistered motor vehicle on a highway. In relation to those charges, they were adjourned to 13 April 2012 without conviction on condition that various compensation be paid by certain dates.
9 Furthermore, on the same day, you were found guilty of criminal damage and again, that matter was adjourned to 13 April 2012 without conviction and a further order for compensation be paid separately by a certain date.
Your personal circumstances and background
10 Your counsel tendered the following material:
(a) A document headed, “Defence Submissions on Plea, 22 January 2018” (Exhibit A);
(b) A report from the forensic psychiatrist, Dr Leon Turnbull, dated 22 January 2018 in respect of an assessment on that date (Exhibit B);
(c) A medical report from Dr Xia Zang, a medical practitioner at the First Health Medical Centre, dated 17 January 2018, together with a report from the consultant psychiatrist, Dr Melvin Pinto, dated 6 October 2016 addressed to Dr Zang (Exhibit C);
(d) A reference from Mr Temese Leilua of the Centre for Multicultural Youth dated 8 January 2018 (Exhibit D).
11 Based on such material and the various submissions made by your counsel, I note the following:
· You were born in New Zealand and are of Samoan heritage. Your counsel notes that you have spent time in Samoa in 2011 and 2012 and are proud of your Samoan heritage and the ability to speak the Samoan language.
· You, together with your parents and your siblings, came to Australia in 1998 when you were aged six. You are now an Australian citizen.
· Your counsel described your family to be of the Catholic faith and to be “deeply religious”, attending church every Sunday. Furthermore, the family is conscious of their Samoan heritage and of traditional practices which include “spiritual healing”.
· You were schooled in Melbourne until Year 12 and according to your counsel, “took to academia” and enjoyed legal studies. Although not particularly sporty, you liked singing and art.
· In 2003, when you were aged eleven, you suffered severe injuries in a motor vehicle accident. The report from the psychiatrist, Dr Pinto, describes you suffering multiple fractures and internal injuries, including to your kidneys. Apparently, your life had been in the balance and you were treated at the ICU at the Royal Children’s Hospital and thereafter, at the Victorian Rehabilitation Centre.
· On leaving secondary school, you went overseas to Samoa for the two years to learn more about your heritage.
· You have pursued a number of educational opportunities at the tertiary level but have yet to complete any. Your latest opportunity was at the Australian Catholic College in 2016 to study a bachelor of international relations. You have deferred that course but have reapplied to return to it.
· You informed Mr Turnbull that your drug use has been limited to using ecstasy in 2014 and smoking marijuana between 2014 and 2015.
· When seen by Dr Pinto in October 2016, you described your father as working as a truck driver and your mother working as a nurse at Box Hill Hospital.
· Your counsel informed the Court that your parents do not know about the subject offending. Your brothers are all in custody for various offending and you consider that your parents viewed you as the one who has not committed any offences and, accordingly, you are too ashamed to tell them about the subject offending.
· Your counsel comments that you appear in the past to have lived a fairly isolated life imbued with seeking religious and cultural experiences. You continue to be supported by your parents and two sisters and, according to Dr Turnbull, are now in a healthier “space” in terms of your psychological and mental health.
· Dr Turnbull obtained a history that you have been involved in various employments and are particularly keen on community development and more charitably focused organisations. In particular, you have expressed a commitment to return to tertiary study.
Your psychological background
12 I refer to the report of Dr Zang dated 17 January 2018, wherein he notes that you were first seen by the St Vincent’s Mental Health Team on 22 June 2016 and diagnosed with acute Polymorphic Psychotic Disorder with symptoms of Schizophrenia, without stress initially. You were transferred by your general practitioner to the consultant psychiatrist, Dr Pinto, on 6 October 2016.
13 I refer to the report of Dr Pinto dated 6 October 2016, wherein he noted that he interviewed you on that day. At that time, you gave a history that you were single, were a university student who, at that time, did not attend any studies (since April 2016) and isolated yourself all day in your room. You stated you spent the day reading the bible and philosophy. Dr Pinto obtained the history that you had attended several tertiary institutions since 2013; that is, RMIT, University of South Pacific (Samoan campus), Bond University and now the Australian Catholic University, reading international relations.
14 Dr Pinto noted that at the time of examination, you were facing a charge of aggravated burglary (one of the subject charges) and you informed him that you did not commit the crime. Furthermore, you informed Dr Pinto that you had lost your licence when working at Dominos as a delivery driver in 2014 (for speeding) and that since then, had accumulated many driving offences and fines, totalling about $12,000.
15 At the time of the examination, you said you felt depressed and that you had been sent to Samoa in 2011 to 2012 for traditional healing services and also for exorcism through Catholic rituals. You considered that you had, “improved as a human being”.
16 On your return to Australia, you had, at one stage, felt suicidal and wanted to kill yourself but had assistance from your spiritual healers.
17 At that time, you were not sleeping at night, went to the gym with your sister late in the evening and did not like being around people. In particular, you were sleeping during the day, eating a lot, causing you to gain 24 kg's in weight. Between April and August 2016, you had heard voices in your head saying “misleading things”, although at that time, you denied any current paranoid ideation or ideas of reference or thought broadcasts.
18 In particular, you did not believe you had an illness or that you needed treatment, and would not take any medications. You informed Dr Pinto that in April 2016, you had seen a counsellor at the Australian Catholic University, after which you were admitted to the St Vincent’s Hospital Psychiatric Unit.
19 After making a mental state examination, Dr Pinto was of the opinion that you suffered from a mental illness of many years’ duration with onset perhaps in 2011 or earlier. Such illness was characterised by features of mood and psychotic disorders. Dr Pinto was of the opinion that you had no insight into this illness and wondered if your family similarly has no insight and that both you and your family appear to be subsumed by religio-cultural belief systems.
20 Ultimately, Dr Pinto said that you were severely psychiatrically ill and that your treatment ideally should be with a specialist psychiatrist, although he accepted it may be difficult for you and your family to accept the need for such treatment.
The evidence of Dr Turnbull
21 Your solicitors referred you to the consultant psychiatrist, Dr Turnbull, who, as I have already noted, interviewed you on 22 January 2018. At the time of that interview, you gave a history that you cannot recall any of the experiences referred to by Dr Zang, dispute that you have ever been psychiatrically unwell, although emphasising that in 2016, a visit by the police was particularly stressful.
22 Furthermore, you gave a history to Dr Turnbull that you do not remember experiencing any particular hallucinatory or delusional experiences.
23 In particular, you informed Dr Turnbull that you do not recall your motivation in relation to the subject charges and that in 2014, you were, “travelling well” and, “studying and doing well”. Later in the assessment, you did acknowledge that at the time of offending you may have been using excessive quantities of “pingers” which is a form of ecstasy and that may have affected your thinking. You were also smoking marijuana.
24 In particular, when asked when any of these experiences outlined in the earlier psychiatric materials were occurring during the time of the offending, you said they were not. You informed Dr Turnbull that you had changed your lifestyle since moving back with your parents and were not going out with friends as much, and went to the gym daily. In particular, you informed Dr Turnbull that you had a mental state free of any “abhorrent psychiatric disturbances” without the use of medication, and do not see yourself in need of any psychological or psychiatric intervention.
25 Dr Turnbull notes that:
“Given there was a lack of recalling any clear motivation towards the offending, it was difficult to identify ways of preventing recurrences of similar situations, but he did cite his overall change in lifestyle as helping him make better decisions in the future.”
26 In particular, you informed Dr Turnbull that you are free of ecstasy and marijuana, and you plan to continue in the same fashion.
27 In particular, Dr Turnbull states:
“Mr Sale has had an interesting few years, this is an unusual case, and I am not sure that any of the previous assessors fully captured what was happening. I think overall this man does not have a chronic psychotic illness such as schizophrenia or bipolar disorder, but rather the combination of illicit drugs and stressful family circumstances have led to a strong cultural response at times that would not respond to conventional psychiatric therapy. It is curious that he cannot recall much of what has occurred, and I do not have a neat psychological explanation for that.
I think the most convincing point that sees the absence of a psychiatric disorder is that he is currently well and has seemingly recovered without medications, thus there has been a spontaneous remission of whatever aberrant mental states he was being blighted with. I suspect he has had some sort of culturally explicable reaction over the past few years that is in keeping with his Samoan heritage. Illicit drugs have probably contributed at times.
As for the offending, it is fairly straightforward acquisitive offending,
Mr Sale cannot remember his motivation, and he may have been affected by marijuana and ecstasy around the time. It was not his recollection that he was experiencing any of the utterances as documented at the time of the offending. I cannot make a clear association between any psychiatric phenomena and the offending.
Mr Sale seems to have consciously made some healthier decisions about his lifestyle and living arrangements since the charges, and is now enjoying living with his parents, is grateful for their support, and intends to return to his studies. If he can continue on the current track, and not return to illicit substances, his future looks promising.
Given his presentations to medical services in 2016, there is some prospect that this man has a fragility that sees him decompensate quickly and enter a state of psychological breakdown. Thus, were he received into custody there is some prospect that he may again have a psychological breakdown. That could run the risk of thwarting his current path of reasonably good health.”
The reference from Mr Temese Leilua
28 Mr Temese Leilua is employed by the Centre of Multicultural Youth Organisation (CMY) as a co-ordinator for the “Le Mana” (Empower) Pacifika Youth Project and has known you and your family for about the last four years and, in particular, met with you last year when you expressed a keen interest in a career in youth work.
29 At that time, you accepted a position in volunteering in the “La Mana” Project and, in particular, in a 12 week music program, where you assisted young people through their lessons and assisted staff. In particular, Mr Leilua states:
“Through the project activities, Mark has developed a strong work ethic through performing and completing his duties and tasks to a high standard and always in a timely manner. Mark is a hard worker and participates well in team discussions and group activities. He is respectful towards his peers and employed staff. Mark has the potential to becoming an effective youth worker should he continue to pursue his interest and desire in this field. … .”
30 Mr Leilua also comments that you have had time to contemplate your actions and how it has impacted on the victims and your own family. He notes that you have expressed, “deep remorse for the pain” you have caused.
Mitigating circumstances relied on by your counsel
31 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a)Your plea of guilty in relation to the offences, although relatively late, does have some utilitarian value. Your counsel noted that this aspect is “somewhat complicated” in that you denied any offending when interviewed by police, and maintained your plea of not guilty until approximately August 2017. I also note that Dr Pinto reports that when he interviewed you on 6 October 2016, you denied committing the crime of aggravated burglary. However, it is also clear that on 3 June 2016, you attended at the home of the father of Aaron Bux (one of the complainants) and apologised for your involvement in the offending. Your counsel submitted that this seeming inconsistency may well be explained by your shame in having to tell your parents, ultimately, of your involvement in the offences. Be that as it may, it was necessary for a committal to be held in this matter, and one of the complainants gave evidence and was cross-examined;
(b)Your counsel submitted that you have shown significant remorse in relation to your offending. In part, he again refers to your attendance on the father of one of the complainants and, more particularly, to what has been said by Mr Leilua, who states:
“Mark has had time to contemplate his actions and how he has impacted the victim and family. Marcus is also aware of the deep concern his family feel for him fearing an unfavourable result. Upon reflection Mark carries a heavy burden on his conscience and after numerous conversations with him Mark has expressed deep remorse for the pain he has caused … .”;
(c)There are no prior convictions for similar offending – in particular, the aggravated burglary. In this respect, I note that on 15 April 2011, the Dandenong Magistrates’ Court found you guilty of recklessly causing injury, causing criminal damage, and shop theft (together with some relatively minor driving offences). No convictions were entered in relation to any of the offending and, seemingly, some type of bond was entered into for 12 months subject to you paying certain compensation.
Your counsel has informed me that since the subject offending, you have committed road safety and traffic offences, a shoplifting offence and a possession of cannabis offence. There have been no offences involving any type of violence.
I also note that the report from the community corrections officer (in relation to your suitability for a community correction order, dated
26 January 2018), makes reference that there have been three prior community correction orders between 2016 and 2017, with you successfully completing one and contravening two orders by way of further offending. However, the corrections officer also noted that on breach applications, both original orders were confirmed with no further action, given your, “otherwise good compliance with order conditions”;(d)Your counsel concedes that the offending in relation to the aggravated burglary is an example of a, “confrontational aggravated burglary”. I refer to the Court of Appeal decision of Director of Public Prosecutions v Meyers,[1] wherein the Court of Appeal (Maxwell P, Redlich and Osborne JJA) stated:
[1](2014) 44 VR 386
“As recent decisions of this court have confirmed,[2] Hogarth[3] is not to be viewed as if it established a carefully-defined zone of ‘exemption’ from current sentencing practices, such that a judge imposing sentence for aggravated burglary would have to decide whether the particular case fell within the scope of ‘confrontational aggravated burglary’ as defined by the SAC.[4]
[2]Reference is made to Gale v R [2014] VSCA 168; Filiz v R [2014] VSCA 212 and Anderson v R [2014] VSCA 255
[3]Hogarth v R (2012) 37 VR 658
[4]That is the 2011 report of the Sentencing Advisory Council (“SAC”)
Rather, the decision in Hogarth should be viewed as having removed the constraint of CSP for aggravated burglary in all of its more serious forms. As can be seen from the SAC definitions set out above, there is a very great degree of overlap between the essential features of ‘confrontational’ aggravated burglary, on the one hand, and ‘intimate relationship’ aggravated burglary on the other. Properly analysed, the latter is a subset of the former. Both are essentially grievance-driven; both involve confronting the person against whom the grievance is held; and, in both cases, the aggravated burglary is typically accompanied by violence or threats of violence.”[5]
[5]Meyers v R (op cit) at paragraphs [36]-[37]
Your counsel also referred to that part of the decision headed “Assessing the seriousness of a particular instance of aggravated burglary”, whereat the Court of Appeal stated:
“Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence. There was argument on the appeal about how the gravity of this particular instance of aggravated burglary should be assessed.
In our view, the following considerations will ordinarily be relevant to such an assessment:
• the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
• the mode of entry (eg, by forcing a door or breaking a window);
• whether the offender was carrying a weapon;
• whether the offender was alone or in company;
• the time of day at which the burglary took place;
• what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
• whether the offender was someone of whom the victim was particularly frightened.”[6]
[6](Supra) at paragraphs [47]-[48]
(Footnote omitted).
Your counsel conceded that the use of a firearm (albeit it may well have been a replica) at the time of the offence, the use of the scissors by you, and the threats made, are all factors that make this a “serious example of the offence”, but the level of seriousness is to be assessed having regard to all of the matters. In this respect, counsel highlighted that there was no forcing of the door, there was no evidence that the victims knew you, that you were in company and that the incident seemingly was of relatively short duration. In this respect, I note the deposition of the complainant, Aaron Bux, taken on 26 February 2014 asserts that you and the others just made demands and threats and were there for about “three or four minutes”;
(e)Although acknowledging that it is not clear what your motivation was to commit the offences, your counsel highlights the following:
(i)Based on the report of Dr Turnbull, you have consciously made some healthier decisions about your lifestyle and living arrangements;
(ii)You have given up, for some time, illicit substances;
(iii)You have some engagement with tertiary education and, seemingly, are a person of normal or above intelligence;
(iv)That you have some commitment to following up your youth work activities with the Centre for Multicultural Youth;
(f)Your counsel also referred to the well-known decisions of Azzopardi v R; Baltatzis v R; Gabriel v R[7] and R v Mills[8] in support of a submission that the offending was committed when you were aged 21 (albeit you are now 25 years old), and that rehabilitation should be the primary objective in the sentencing of young offenders;
[7](2011) 35 VR 43
[8](1998) 4 VR 235
(g)In particular, your counsel, no doubt based on the report from Dr Turnbull, disclaimed any reliance of the principles enunciated in the well-known decision of R v Verdins & Ors.[9] Although it may well have been that you were having psychiatric difficulties at and around the time of the offending and, indeed, may well have been ingesting illicit substances, there is no evidence to relate any of these events to the offending – although this may explain your lack of memory about the circumstances of the offending. Such is no more than speculation, and as Dr Turnbull states – he can make no, “clear association between any psychiatric phenomena and the offending”. Furthermore, again, as made clear by Dr Turnbull, you presently suffer no particular psychiatric disability although Dr Turnbull states that there is, “some prospect that this man has a fragility that sees him decompensate quickly and enter a state of psychological breakdown”. He notes that if placed in custody, “there is some prospect that he may have a psychological breakdown”.
[9](2007) 16 VR 269
Your counsel, in particular, refers to the recent Court of Appeal decision of Bradshaw v R,[10] and, in particular, at paragraph [46FF], whereat the Court (consisting of Warren CJ, Kyrou and Redlich JJA) stated:
[10][2017] VSCA 273
“The learned judge recognised that Hogarth provided guidance as to the principles and sentencing standards that should apply to aggravated burglaries of the objective gravity with which Hogarth was concerned. As we have said, in relation to ground 1,[11] his Honour was not in error in viewing the appellant’s conduct as falling within that category. The learned judge rightly viewed the sentencing standard for aggravated burglary, as uplifted following Hogarth, as relevant to the appellant’s offending. But his Honour did not approach his task on the basis that the sentencing range that the Court stated would have been appropriate in the case of Hogarth applied in the present case.”
[11]That is, the offence of aggravated burglary.
Later, at paragraphs 49 to 52, the Court went on to state:
“Parsimony requires sentencing judges to give proper consideration to non-custodial options. As this Court stated in Boulton, a CCO provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of re-offending by promoting the offender’s rehabilitation. As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending. The error which his Honour made, with respect, was to view the gravity of the offending to be of such an order that the sentencing range could only include an order that involved confinement of the appellant.
There were factors present that could have led the judge to conclude that the purposes of sentencing could be met without an order of confinement. It is rare to encounter an offender with such strong prospects for rehabilitation. The judge, who recognised this, characterised them in his sentencing reasons as ‘excellent’. Further, as a youthful offender, promotion of rehabilitation became a primary purpose of sentencing. It follows that in cases where rehabilitation is of paramount importance consideration of a CCO will take on greater significance.
It is evident, however, that his Honour treated offending of this gravity as precluding the possibility that a CCO could be imposed for this category of the offence of aggravated burglary. His Honour also dismissed the possibility that the principles discussed in Boulton, that a CCO could be appropriately punitive whilst achieving the broader purposes of sentencing, could extend to the appellant’s circumstances.
We thus accepted the submissions of both parties, that his Honour misconceived the objective gravity of the offence as precluding a sentencing disposition that did not involve confinement and as excluding the reach of Boulton. That is not to say that it would not have been open to the judge to have concluded that confinement was necessary and that youth justice detention was the appropriate disposition having regard to the objective gravity of the offence and matters personal to the appellant … .”
(Footnotes omitted).
32 Ultimately, your counsel submitted that on the basis of Bradshaw and, of course, depending on the objective seriousness of the offending, a combination of custodial sentence and community correction order would be within range. Your counsel also referred to the cases annexed to Bradshaw,[12] where a community correction order had been ordered. Your counsel also accepted that a straight custodial sentence was also open.
[12]Op cit
33 Counsel for the prosecution submitted the following:
(a)That the objective seriousness of your offending in relation to the aggravated burglary is such that a combined sentence of a community correction order and imprisonment would not be in range. In particular, she submitted it was appropriate to order a head sentence with a non-parole period;
(b)Although seemingly accepting that Bradshaw makes clear that in certain circumstances, a combined sentencing disposition would be open for the crime of aggravated burglary, she submitted – correctly in my view – that it depends on the objective seriousness of the offending;
(c)In particular, counsel for the prosecution noted that general deterrence and denunciation are particularly relevant factors in determining an appropriate sentence. In the circumstances of this matter, where none of the principles enunciated in Verdins[13] are applicable, there is no basis for moderating such factors for this type of offence;
(d)Counsel for the prosecution also highlighted the strange situation that you have not much memory of the circumstances surrounding, or the basis for, the offending. In particular, she notes there is no real evidence to support such an assertion other than your say so, made in the context that you had seen fit to remember that it was an imitation pistol. Counsel submits that this has to play some role in determining your prospects of rehabilitation;
(e)Given that you were 21 years of age at the time of the subject offending, counsel for the prosecution accepts that the principles enunciated in Azzopardi[14] and Mills[15] do have some application, although you are at the upper limits of being a youthful offender. Furthermore, she noted, correctly in my view, such principles diminish depending on the seriousness of the criminal activity.
[13]Op cit
[14]Op cit
[15]Op cit
34 The Court directed that you be assessed for a community correction order and, indeed, as has already been recorded in these reasons, you underwent such assessment on 26 January 2018.
35 At that time, you were assessed as suitable for a community correction order with the following conditions recommended beyond the core conditions:
(a)A condition pursuant to s.48D(3)(e) of the Sentencing Act 1991 in relation to treatment and rehabilitation pertaining to mental health;
(b)A condition pursuant to s.48D(3)(f) of the Sentencing Act 1991 in relation to programs reducing re-offending;
(c)A condition pursuant to s48E of the Sentencing Act 1991 involving supervision over the period of the order.
36 The Court also notes that Community Correctional Services assessed you as being, “a high risk of re-offending” according to the Level of Risk Assessment Tool.
Conclusion
37 As is made clear in Hogarth, the offence of aggravated burglary has the potential to be a very serious offence, as made manifest by the maximum penalty of 25 years' imprisonment. From what you have told others and, indeed, what you have instructed your counsel, you have no clear memory of the circumstances of the offence or, indeed, your motivation for committing the offences.
38
It may be such offending occurred to facilitate what is referred to as “acquisitive offending” – that is to say, the theft of the various items of money, phones, laptop and shoes. The aggravated burglary occurred late in the evening of
26 February 2014, when the two complainants were sleeping in a bungalow at the back of the house. After you knocked on the door of the house, and the door was opened by one of the complainants, you were standing there holding a gun in your right hand.
39 Through your counsel, you assert that such gun was an imitation, but of course to the complainants it must have been a fearful confrontation. You also told one of the complainants to, “Get the fuck back” and “shut up” and made demands for various phones and other materials.
40 You were also accompanied by three unknown males wearing face masks, one of whom had in his possession a knife which was passed around the group. You picked up a pair of scissors and threatened to stab one of the complainants, and you and the other three offenders searched the bungalow and took possession of the material, the subject of the theft charge.
41 Turning to the various matters set out in Meyers,[16] to assist in assessing the seriousness of the particular instance of aggravated burglary, I find beyond reasonable doubt:
[16]Op cit
(a)That you committed the offence with the intention of stealing from the occupants and, indeed, the various items which you did steal is the basis for Charge 2;
(b)The mode of entry was by knocking on a door, causing one of the complainants to rise from his bed, open the door and be confronted by you carrying a gun (authentic or otherwise);
(c)As indicated, you were carrying a gun, and later, during the course of the aggravated burglary, you picked up a pair of scissors and threatened to stab one of the complainants with them;
(d)You were in company with three other unknown males who were wearing facemasks and who followed you inside the bungalow. One of those other males was in possession of a knife which was passed around the group;
(e)The time of the burglary was late evening, and according to the deposition of the complainant, Shelby Jacobs, occurred about midnight, whereas the other complainant thought about 1.00am;
(f)There is no evidence to indicate that you knew or believed about who would be inside the premises;
(g)There is no evidence that you were someone of whom one or both complainants were particularly frightened – that is, prior to the aggravated burglary.
42 I also find that you and the other three were only in the cabin for a matter of minutes (approximately three to four minutes). Notwithstanding, the experience must have been terrifying for the occupants to have been confronted vy you carrying a gun, together with three other men who were wearing masks, one of whom was carrying a knife. Furthermore, this is compounded by you picking up a pair of scissors and threatening one of the complainants.
43 Although an inherently violent offence, I accept that there was no physical violence in the sense of striking or making contact of any type with either of the complainants.
44 Because of the number of intruders, the use of the gun (imitation or otherwise), the use of the scissors and the threats made to the complainants by you, I do consider this a serious example of the offence of aggravated assault. However, although I do find that the objective seriousness of the aggravated assault is serious, but not the most serious of this type of offence.
45 In mitigation of such offending, I do take account of the following matters:
(a)Your plea of guilty to the offending was at a, “relatively late stage”, but still has some utilitarian value in that the time, cost and use of resources in conducting a trial is obviated, together with the need of the complainants to give any evidence and relive the subject matter of these offences;
However, I do note that you denied that you committed any offending for a long period of time and, in particular, denied it to police initially, and as late as early 2017. I do accept that you attending the father of the complainant on 3 June 2016 does reflect some acknowledgement of your wrongdoing, but unfortunately this was not followed through by accepting your culpability in relation to the offending. It may be, as your counsel suggested, that you were concerned as to how your family would react to you being charged with such offences;
(b)Partly as a result of your attendance on the father of one of the complainants on 3 June 2016 and, indeed, what I have been told in the reference from Mr Temese Leilua, I accept that you do experience some genuine remorse in relation to this offending, both in relation to the impact of such offending on the complainants and the impact on your own family when they realised such offending has occurred;
(c)Prior to the commission of these offences, you had no prior history of aggravated burglary and your only offending would appear to be when you were 17 or 18 and placed on a bond.
46 It is troubling to some degree your assertion that you do not know why the offending took place or, indeed, have much memory of it, although this may well be explained by the effect of drugs being taken at or about that time. This raises the difficulty as touched on by Dr Turnbull that, because of the lack of recalling any clear motivation towards the offending, it was, “difficult to identify ways of preventing re-occurrence of similar situations”.
47 I also accept the comments of Dr Turnbull when he noted that you:
(a)Are free of ecstasy and marijuana and plan to continue in the same fashion;
(b)That your overall change in lifestyle is helping you make better decisions, going out with friends, as such, and going to the gym daily;
(c)That you believe you have your life back on track and intend to pursue your Bachelor of International Relations at the Australian Catholic University and you have re-applied for that to take place;
(d)That you have been involved with the Centre of Multicultural Youth, demonstrating a strong work ethic and, indeed, again, according to
Dr Turnbull, you are particularly keen on community development and more charitably focused organisations.
48 Perhaps, more significantly, the investigation by Dr Turnbull did not disclose any psychotic disturbances in your perceptions or thinking and that you are motivated towards the future and further education. In this respect, Dr Turnbull considered you to be likely of average or above intelligence on clinical observation.
49 I also take into account the report from Community Correctional Services, who assessed you as being “a high risk of re-offending” according to the Level of Risk Assessment Tool. Taking all these matters into account, I have formed the view that your prospects of rehabilitation can be no more than reasonable.
50 I refer to the guideline judgment given by the Court of Appeal in Boulton v R; Clements v R; Fitzgerald v R[17] pertaining to the operation of community correction orders which had been available in Victorian courts since January 2012. As that Court stated, the community correction order is a radical new sentencing option, with the potential to transform sentencing in this state. Although a non-custodial order, such order has mandatory conditions laid down by the legislature, and the sentencing court can attach to the community correction order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community correction order is a, “flexible sentencing option” enabling punitive and rehabilitative purposes to be served simultaneously.
[17](2014) 46 VR 308
51 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991 which state:
“(4)Subject to sub-sections 2G and 2H a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
(4C)Subject to sub-sections 2G and 2H a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
52 As the Court of Appeal has stated, the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has placed specific and careful attention to:
(a)The purpose for which the sentence is to be imposed on the offender; and
(b)Where the purpose can be achieved by a community correction order to which one or more of the specified (onerous) conditions is attached.
53 I also refer to Appendix 1 of a Court of Appeal Judgment which is headed, “Community Correction Orders, Guidelines for Sentencing in Courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and the moral culpability of the offender. I am then called upon to consider whether:
(a)The crime, as so assessed, is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)A community correction order, either alone or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
54 The Court of Appeal, in Bradshaw, makes clear that as the order of seriousness of offending conduct increases, so the likelihood of such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending. The error identified in Bradshaw was to view the gravity of the offending to be of such an order that the sentencing judge could only consider an order that involved confinement of the appellant.
55 I consider that just punishment, denunciation of the crime of aggravated burglary and, in particular, general deterrence and, to a lesser extent, specific deterrence, are all relevant in determining an appropriate sentence. After consideration of all the foregoing matters, I have come to the view that the objective seriousness of the offending involving the aggravated burglary is high and that only an immediate term of imprisonment with an appropriate non-parole period is appropriate in all the circumstances.
56 Although accepting that there are more objectively serious examples of such an offence, it must be borne steadily in mind that for whatever reason you entered private premises consisting of a bungalow very late in the evening, causing the occupants to be woken and be intimidated by you with the gun, various threats and also threatening one of the complainant’s with scissors. You were in company with three other men who were masked, one of whom held a knife which was passed around amongst the others.
57 Such crimes must be strongly denunciated and any sentence must clearly have a strong element of general deterrence. In this respect, in the absence of any principles relevant to the case of Verdins, factors such as general deterrence and denunciation are not moderated in any way.
58 Although I accept that the offence of theft is not as serious, you saw fit to steal various objects (some of which are value), although no precise valuation was given. You then, perhaps in an unsophisticated and clumsy way, sought to dispose of those objects for monetary gain which, in part, brought about your ultimate arrest. I intend to convict you of both offences and sentence you to a period of imprisonment.
59 Please be upstanding.
(a) In relation to Charge 1, you are convicted and sentenced to two years’ and six months’ imprisonment;
(b) In relation to Charge 2, you are convicted and sentenced to two months’ imprisonment, one month of such imprisonment to be served cumulatively with the term of imprisonment ordered in Charge 1.
(c) The total effective sentence is two years and seven months, and I order that there be a non-parole period of sixteen months;
(d) I further declare the period that the prisoner has been in custody in respect of these offences, namely 34 day/s, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
(d)I further order in relation to Charge 1 and 2 pursuant to s464ZF(2) of the Crimes Act 1958, you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the Act until a sample of sufficient standard is obtained for placement on the database. I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, the sample to be taken will be a blood sample, and police may use reasonable force to enable the forensic procedure to be conducted.
60 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have ordered that you serve a period of imprisonment of four years.
61 Yes, anything counsel?
62 MR BARNS: Nothing, Your Honour.
63 MS PICONE: Nothing further, Your Honour.
64 HIS HONOUR: Yes. The family cannot see the prisoner downstairs, can they? No. Look, I will allow the family just briefly in my presence just to approach the prisoner; no touching though. Yes, take the prisoner. Thank you very much.
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