Director of Public Prosecutions v Shanks
[2016] VCC 2004
•20 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01525
CR-16-01453
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLIN ZACHARY SHANKS |
| and |
| BRADLEY JAMES McLELLAN |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November and 8 December 2016 | |
DATE OF SENTENCE: | 20 December 2016 | |
CASE MAY BE CITED AS: | DPP v Shanks & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2004 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Both defendants – aggravated burglary and theft – Shanks: causing injury recklessly – McLellan: causing injury intentionally . Shanks: TES 15 months imprisonment and 4 year CCO – McLellan: TES 16 months imprisonment and 4 year CCO
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Warda | Solicitor for the Director of Public Prosecutions |
| For the Accused Shanks | Ms H Ebsworth | Lethbridges Solicitors |
| For the Accused McLellan | Mr G Chisholm | James Dowsley & Associates |
HER HONOUR:
1 Tylin Zachary Shanks and Bradley James McLellan, you have each pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of theft which carries a maximum penalty of 10 years’ imprisonment. In addition, you, Mr Shanks, have pleaded guilty to one charge of recklessly causing injury, which carries a maximum penalty of 5 years’ imprisonment and, you, Mr McLellan, have pleaded guilty to one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are detailed in the Summary of Prosecution Opening (Exhibit “A”). The offending occurred on 11 February 2016. At that stage, you, Mr Shanks, were aged twenty-four and, you, Mr McLellan, were aged nineteen years.
3 At approximately 7.00am, the two of you and two other males arrived in a car outside a house at 3 Bouvardia Crescent, Frankston. This was the residence of two victims, Benjamin Coombs and Andrew Cetera, and another victim, Marc Martino, was staying with them. An unknown male who was driving the car in which you were passengers, parked the car a short distance away from the house. The two of you and another unknown offender went to the front door. You, Mr Shanks, and the other unknown offender were armed with a hammer and a crowbar.
4 The three of you repeatedly kicked and banged at the front door until the frame gave way and the door broke. You, Mr McLellan, were not armed with a weapon, but were aware that Mr Shanks and the other unknown offender were armed and were complicit in their behaviour. You all gained entry into the property while the three victims were asleep in their bedrooms and they awoke to hear your banging and crashing. This is the basis of Charge 1, aggravated burglary.
5 The three of you kicked the bedroom door of your victim, Mr Coombs, shouting, “Get up, cunt, you’re fucked. You’re going to pay, cunt, your time has come.” Your other victim, Mr Cetera, walked out of his bedroom and asked what was going on. You, Mr Shanks, told him to go back into his room. The unknown co‑offender struck Mr Cetera with the crowbar and, also, told him to go back into his room. He walked backwards towards the doorway of his room with his mobile phone in his hand trying to telephone police and, you, Mr Shanks, forcefully took his phone from him, tearing his T-shirt.
6 Mr Cetera retreated to his bedroom and changed his shirt, but then tried to run past the three of you, who were in the hallway near Mr Coombs’ bedroom. As he did so, you, Mr McLellan, used a hammer to strike Mr Cetera on the back, just above his shoulder. This conduct forms the basis of Charge 3, intentionally causing injury, to which you, Mr McLellan have pleaded guilty. Mr Cetera managed to escape from the house and called for police assistance.
7 Mr Coombs ran out of his bedroom, but was attacked with a hammer by one of three of you and ended up in a scuffle. You, Mr Shanks, announced that you were going to take Mr Coombs’ belongings. The three of you then smashed the window of a cabinet in the lounge room and took Mr Coombs’ Sony Play Station and Microsoft X-Box. Mr Coombs tried to stop you from damaging and taking his property, but you, Mr Shanks, threw a broken mug at him which struck and cut his chest. This forms the basis of Charge 2, recklessly causing injury, to which you, Mr Shanks, have pleaded guilty.
8 Mr Coombs ran outside his property but overheard one of you mentioning his two dogs and returned, as he feared for their safety. When he re-entered his home, you, Mr Shanks, confronted him with a knife. Mr Coombs then armed himself with a knife for protection and left the property, but the three of you surrounded him in the front yard. You, Mr Shanks, were carrying Mr Coombs’ Sony Play Station and Microsoft X-Box. The three of you then ran away, taking Mr Coombs’ property with you, and got into the car driven by the fourth unknown offender. This is the basis of Charge 4, theft.
9 The third victim, Mr Martino, could hear the yelling and screaming and, at some point, you, Mr Shanks, had entered his bedroom and told him to remain there and not to exit, and closed the door. Ultimately, he left his room after he could no longer hear any noise and believed that you must have left.
10 Mr Cetera was transported to Frankston Hospital where he received treatment for a laceration to his head and for swelling and abrasion to his left shoulder.
11 Mr Coombs was treated by ambulance paramedics for a small laceration to his head.
12 Mr Shanks, you were arrested and interviewed nearly five months later in July 2016. You made a “no comment” record of interview. You, are presently aged twenty-four years, having been born on 12 January 1992. You come before the Court with the following criminal history:
· On 11 March 2010, you appeared at Frankston Children’s Court on charges of burglary, theft, dishonestly receiving stolen goods, criminal damage, stating a false name, failing to answer bail, going equipped to steal and another charge of theft. Without conviction, all matters were adjourned for a period of nine months upon you entering into a good behaviour bond.
· On 30 May 2011, you appeared at Frankston Magistrates’ Court on charges of theft and failing to answer bail. Without conviction, you were fined.
· On 27 August 2014, you appeared at Frankston Magistrates’ Court on charges of failing to answer bail, theft, burglary, obtaining property by deception, attempting to commit an indictable offence, committing an indictable offence whilst on bail, recklessly causing injury, using indecent language, driving whilst disqualified, burglary, criminal damage, possessing cannabis, using an unregistered motor vehicle and driving without P plates. You were fined on the possession and driving charges and, on the other charges, were sentenced to an aggregate of 4 months’ imprisonment, which was wholly suspended for a period of one year.
· On 7 September 2015, you appeared at Dandenong Magistrates’ Court charged with contravening the suspended sentence, which was found proven and no order was made on the breach.
13 Mr Shanks, in a plea on your behalf by Ms Ebsworth, the Court was told that you came from a background of deprivation. Your mother was only twenty years old when she gave birth to you and, apparently, she had a number of substance abuse and mental health issues. Your father left your mother shortly after you were born and, throughout childhood, you were moved from place to place, often living in caravan parks and largely being neglected by your mother and left to your own devices.
14 Evidence was given at the plea hearing on your behalf by your mother’s sister, Ms Kassandra Rixon, who also wrote a reference (Exhibit 2-S). She stated that she had left home at age 15 years and was only seventeen when your mother gave birth to you. Your mother returned to work as a factory hand at General Motors Holden shortly after you were born and largely left you in Ms Rixon’s care. Ms Rixon stated that she practically raised you for the first 18 months of your life. Your mother was not a good mother and did not even refer to you by name, but rather as “the cunt” and blamed you for everything that went wrong in her own life. Ms Rixon stated that, on occasions, she found your mother unconscious after having taken an overdose of sleeping tablets and, you, at age four or five would be left wandering around with no one to care for you. She stated that on four or five occasions she had to take your mother to hospital because of overdoses and, for three years, your mother had a boyfriend who would physically assault you with a belt. She stated that the way you were treated caused a huge rift between herself and your mother, who was ultimately diagnosed with a bipolar disorder approximately eight years ago, after a lengthy history of daily marijuana use as well as abuse of prescription medication and amphetamines.
15 Ms Rixon stated that she had suffered depression and was unable to care for you. She stated that you had endeavoured to reconnect with your father but he showed no interest in you, and at about age twelve, you ran away from home and were living under bridges or in shops and parks. From time to time, she would catch up with you. Later, in your teens, you moved in with your father’s new family, but your father still showed little interest in you. However, this move did give you an opportunity to connect in some small way with your half-sister, Casey, who is some five years younger than you, and who was present in Court to support you.
16 Ms Rixon described your struggle with drug addiction and how you had lived under a bridge on the Dandenong-Hastings Road for a long time when you were nineteen or twenty. However, over a period which seems to coincide with the gap in your criminal history, between 2011 and 2014, you managed to straighten yourself out and received an education award from the Frankston City Council. An extract from the Frankston City News, November/December 2014 edition, was tendered as Exhibit “3-S”, confirming this award. Ms Rixon stated that you undertook adult education and, for a time, did well whilst being engaged on the CREDIT bail program. You managed to finish Year 11 at Chisholm TAFE in Frankston and then obtained two jobs, one working at Dandenong RSL and the other working as a factory hand in Dandenong South. You obtained a rented apartment which you maintained by yourself, and things went well for you for a while. Unfortunately, you came home one day to find that your girlfriend was in bed with your best friend and you felt rejected and betrayed by her, just as you had felt rejected by each of your parents. This resulted in a downhill spiral back into drug use and loss of the apartment and your jobs.
17 Ms Rixon stated that, after you had tried to connect with your father, he then left his new family and you did not feel comfortable remaining in their home, so you had moved out and became homeless again and that was your situation when you committed the offences for which I must sentence you. Ms Rixon stated that, at that stage, she was suffering considerable health issues of her own and it was not an option for her to take you in to live with her. However, she stated that she has visited you every Sunday since you have been in custody and, sometimes, has up to three telephone conversations with you each day. She considers that you have been doing well in custody in that you have been abstaining from drugs, but are up and down emotionally. She stated that she considers you to be her own child and would be happy for you to come and live with her when you are released from custody.
18 Your counsel, Ms Ebsworth, stated that, at the time of offending, you were using significant amounts of methylamphetamine each day, which adversely impacted upon your behaviour. You had continued to use illicit drugs at the beginning of your remand period, but have now determined to abstain from use of illicit drugs. A random drug screen was conducted on 14 September 2016 at the Metropolitan Remand Centre and analysis showed that no illicit drugs were detected. (Exhibit “6-S”)
19 In custody you have undertaken a number of courses, certificates for which were tendered as Exhibit “1-S”. You completed a Certificate II in Cleaning Operations at Kangan Institute and, also, have undertaken a number of courses via Box Hill Institute. These include Certificate II in Laundry Operations and Cleaning Operations and Certificate I in Information, Digital Media and Technology. In addition, you have undertaken a number of other courses at the Metropolitan Remand Centre including a Prison Legal and Assistance Project, a Coping with Change course and a Managing Loss course. It is to your credit that you have used your time usefully whilst in custody, particularly as Ms Rixon mentioned that you had been suffering depression, which has resulted in you being prescribed antidepressant medication whilst on remand. You are fortunate enough to have such a kind and caring person as Ms Rixon to be supportive of you.
20 An extract from your Justice Health file was tendered as Exhibit “5-S”. This confirms that you have been feeling anxious during your first time in prison. You reported difficulties sleeping and feeling fearful and paranoid around people and suffering occasional panic attacks. You had been working in the kitchen, but ceased that job due to feeling incapacitated by your low mood and anxiety. On 30 September 2016, you were seen by a psychiatric nurse, Denise Conway, who noted, “Low in mood, restricted affect, feels incapacitated by anxiety, quit job due to mental state, difficult to engage mostly due to mood, self reports poor concentration and attention, poor motivaiton (sic), states he self medicated with drugs – mostly ICE, referred to Caraniche, he states he has done some of the programs, denies SASH risks. Appointment for psych registrar to be booked.”
21 On 14 October 2016 you were seen by a psychiatric registrar, Dr Jerome Nicholas, who noted: “Impression: generalixed (sic) anxiety with features of paranoia. Family history of completed suicide and Schizophrenia.
Plan: Commence Escitalopram, gradually increased to 20 mg mane (sic). Monitor mental state, review in 4/52.”
22 Your counsel stated that by the time of the plea hearing the antidepressant, Escitalopram, had been increased to a 20 milligram daily dosage.
23 On 3 November 2016 you were referred to the Mobile Forensic Mental Health Service. A letter from that service dated 9 November 2016 confirmed that you have been accepted to participate in the group program, but you do not yet have a starting date for that program. (Exhibit “4-S”)
24 In sentencing you I take into account your disadvantaged background, the strengths you have shown when you have been free from illicit drugs in terms of educating yourself and obtaining employment and, also, your long term psychological problems, particularly feelings of abandonment and rejection. I also take into account that you have experienced increased anxiety and depression whilst in custody. This is primarily reactive to the situation in which you find yourself, but has resulted in prescription of antidepressant medication for the first time in your life.
25 It was urged by your counsel that, notwithstanding the seriousness of your offending, the Court should note that you are still relatively young, 24 years old. Ms Ebsworth submitted that, with appropriate support, you have reasonable prospects of rehabilitation. For this reason, it was urged by your counsel that a combination sentence of imprisonment and a Community Correction Order would be appropriate so that your rehabilitation could continue in the community. The Crown agreed that such a sentence is within the range of appropriate sentences.
26 Mr McLellan, you were arrested and interviewed some three months after the offending on 17 May 2016. You told a number of lies to police during your interview, claiming initially that you had remained in the vehicle at all relevant times and had thought that Mr Shanks was just going to go up to the door and get the money and that it would be a simple transaction. You claimed that the two people who went into the house first did not have any weapons with them and, it was only later when you could hear banging and loud noises, that you walked in and saw people “arguing and things being thrown around”. You claimed that you were standing and watching most of the time, and that “the first thing (you) said was ‘Get out’ or ‘Calm down’ or ‘let’s go’ or something”. You claimed that you hit a person with a broom because that person was swinging a bar at you, but stated that you did not remember Mr Shanks holding a knife, he did not steal anything from the property and you did not see the victim, Mr Cetera, get hit on the back with the hammer. Later, you admitted that you had hit him on the back because he was fighting another person.
27 You, are presently aged nineteen years, having been born on 27 January 1997. You have a history of a number of prior court appearances.
· On 15 August 2013, you appeared in Frankston Children’s Court on charges of criminal damage, unauthorised entry and theft. Without conviction, the matters were adjourned for 12 months upon you entering into a good behaviour bond.
· On 16 October 2014, you again appeared in the Frankston Children’s Court for unlawful assault. Once again, without conviction, you were released upon an undertaking to be of good behaviour for a period of 12 months.
· On 26 October 2015, you appeared at Frankston Magistrates’ Court on charges of making a threat to kill, threatening to destroy or damage property, contravening an interim personal safety intervention order, resisting police, contravening a family violence intervention order, criminal damage, committing an indictable offence whilst on bail and assault with a weapon. You were convicted and ordered to undertake a Community Correction Order for a period of 12 months, with conditions involving assessment and treatment for drug abuse, as well as mental health assessment, supervision and the undertaking of programs to address your offending behaviour
28 From the outset, your compliance with the Community Correction Order was extremely poor and, by mid-January 2016, you had ceased all contact with Community Corrections. It is an aggravating feature of the offending for which I must sentence you that it was committed at a time when you were supposed to be undertaking the Community Correction Order and in breach of it.
29 During the plea on your behalf by Mr Chisholm, a letter from your mother, Ms Kristal Du Bois, dated 5 November 2016, was tendered as Exhibit “2-M”. Your mother also gave oral evidence at the hearing. I found her to be an impressive, intelligent person, who spoke very frankly about your bad behaviour and how she had been sorely tried by it.
30 Your mother stated that you had grown up in a loving family and were a beautiful and caring child. She and your father separated when you were about twelve years old and this is when you became wilful and began to use illicit drugs. She stated that there is a history of addiction on her side of the family, as her grandmother and mother had been alcoholics, four out of her five uncles were addicted to either drugs or alcohol, and her father and her sister were heroin addicts. She stated that, as you began to abuse more and harder drugs and, particularly, to increase your use of ice, you became violent and manipulative. You stole from her and other family members. You put holes in the walls of her home, broke windows and doors and smashed furniture. She stated that she could no longer tolerate your behaviour and asked you to leave. You threatened her and your younger brother and she said they were so fearful that, ultimately, she had to take out an intervention order to protect herself and your younger brother from you. She stated that, since you have been in custody and ceased abusing ice, she has seen her lovely son return to her. You have indicated a determination to remain free of drugs and been very frank about your wayward lifestyle and have stated that you want to be a good example to your younger brother and ensure that he does not end up in the horrible downward spiral of addiction that you suffered.
31 Not to put too fine a point it, Mr McLellan, your mother described your behaviour as over many years as being that of a selfish brat. You were full of yourself and had arguments with teachers and walked out of classes. You started using cannabis at about age twelve and, notwithstanding that you had enjoyed a good relationship with each of your parents and suffered no disadvantages, you could not appreciate the advantages that you had. As your mother said, you thought you were a cool kid and fearless and, as you progressed in your drug taking, this seemed to enhance your feelings of fearlessness and drugs became the most important thing in your life, far more important than your family or anything else. It appears that you have put your long-suffering, decent mother through hell and back again.
32 Your mother sent you to Queensland to live with your father for a time and your father tried to engage you in football, which was one of your strengths and loves. You stayed with him for seven or eight months in Cairns, but then returned to Melbourne and your dreadful ways. Your father moved back to Melbourne to try and help with your challenges and, when you were about eighteen, again, your mother was compelled to ask you to leave her home because of your abominable behaviour. She described you as floating between addresses, couch surfing, coming and going from home and, stated that, at the time of offending, you were living with your father. Your father, in a letter to the Court wrote of how hard you found it in Queensland because you did not have any mates, but stated that you did enjoy playing football. He considered that you had enormous potential to progress in football, but you made bad choices about who you would associate with and how you would lead your life.
33 A former football coach of yours, Heath Manzie, also wrote a letter to the Court about your talent as a footballer, but stated that he had noticed aggression in your behaviour by the time you were in the Under 15s and later discovered that you had begun taking ice. He said he knows you feel guilty for what you have done to your family. Similar sentiments were written in a reference from a family friend, Richard Wells, who has known you all your life. He noted that, when your parents separated, you found it hard to accept and were not coping well, but did have a capacity to be a hard worker, as you had worked for a time as an apprentice roof tiler with one of his friends when you were aged about sixteen.
34 Your mother stated in her oral evidence that, every weekend, she and your father and younger brother, Cameron, go together, as a family, to visit you in prison. Also, she speaks to you two or three times during the week. She stated that you have had some very hard conversations and you have been honest about your drug taking and dissolute lifestyle. She said you have spoken about the guilt and shame that you have suffered and she has noticed a “one hundred percent turnaround” in your behaviour. She stated that, since you were remanded in custody, you have been abstinent from drugs for the first time in a long, long time. She notes that your eyes are clear, you have put on weight and are clean and healthy. She stated that you had a lot of time to reflect on your bad behaviour and to develop remorse. Also, you have been doing courses and working hard, initially in a nuts and bolts job, but, then, in the laundry at the prison, five days a week.
35 Tendered as Exhibit “1-M” at the plea hearing was a report from Mr Mathew Staios, psychologist, dated 9 November 2016. He had assessed you at the request of your solicitors. He took a history that you had reported low self-worth, adjustment issues, anger and themes of abandonment dating back to your parents’ separation and your father’s subsequent relocation to Queensland eight years ago. He also took a history of poly-substance abuse, starting with cannabis of up to 10 grams weekly between the ages of twelve to seventeen and methylamphetamine use from age fifteen, which grew to 3 to 4 grams daily, as well as using 15 milligrams of GHB daily and, on occasion, ecstasy. He considered you meet the DSM-V diagnosis of Stimulant Use Disorder in early remission.
36 Mr Staios noted that you had ceased taking all illicit drugs since you were remanded in custody some seven months ago. He considered that you are not currently experiencing symptoms of poor psychological health, but he expressed concern that you were psychologically vulnerable and that an extended sentence in an adult prison could exacerbate such vulnerabilities because exposure to antisocial personalities is significantly higher in that custodial environment. When he saw you in November, he assessed your insight into your offending was somewhat lacking, but he expressed the view that you had the capacity to change, particularly if you are provided with a high level of support. He considered that you needed to work with a youth and family psychologist to address your symptoms of conduct disorder, anger management and offending behaviours.
37 Your counsel urged that, as you are a young offender within the definition in s3 of the Sentencing Act, the Court should have you assessed for suitability for a Youth Justice Centre order. A report from Mr Kane Lines, case manager at Bayside Peninsular Corrections, dated 6 December 2016, was tendered as Exhibit “H” and Mr Lines also gave oral evidence before me.
38 Mr Lines’ noted that you displayed minimal victim empathy by appearing to justify your actions because the person from whom Mr Shanks was endeavouring to recover money was a drug dealer who owed money. You stated that you “regretted” the offence but did not articulate how your actions may have affected the victims or the community. He noted your poor performance on the Community Correction Order which you had been given by the Magistrates’ Court shortly prior to this offending. However, he did note that, while in custody, you had demonstrated a sense of maturity in relation to interactions with other prisoners. He stated that you keep to yourself whilst on remand, because you do not want to make connections or associate with older criminals, as you knew of people who had reoffended after being released because they had made such connections in prison. He noted , also, that, after having breached the Community Correction Order and continuing to use illicit substances, you had been abstinent from illicit drug use while in custody and had participated in a number of courses, certificates for which were tendered as Exhibit “3-M”. These comprised a Certificate I in General Education for Adults, Certificate I in Information, Digital Media and Technology, Certificate II in Cleaning Operations and Certificate II in Construction Pathways.
39 Mr Lines noted no formal mental health diagnosis, but noted that, in the past, you had threatened to commit self-harm or suicide in order to manipulate your parents into giving you money so you could purchase drugs. He noted your history of poor behaviour, breach of an intervention order taken out by your mother and a limited employment history as a concreter and a roof tiler, but that escalation in ice use caused you to lose such employment. He noted pro-social activity by you having played football, although, as your substance use escalated, your commitment to football quickly deteriorated. However, you had expressed a desire to re-engage with football.
40 Mr Lines assessed you as having reasonable prospects for rehabilitation because you have accepted responsibility for your offending and are able to recognise the link between your offending behaviour and substance use. Also, you have positive support from your family, who have pro-social values. Further, you have demonstrated some remorse for your actions in that you can recognise the effect that your behaviour has had on your family and have expressed the desire to access rehabilitative programs, as well as motivation to establish a pro-social lifestyle. In addition, you had utilised educational opportunities available to you at Port Philip Prison, had no history with Youth Justice and had engaged in employment whilst on remand, was well as attending Narcotics Anonymous.
41 Mr Lines also considered that you met the criteria for being particularly impressionable, immature, or likely to be the subject of undesirable influences in an adult prison in that you are in the younger age range of young offenders, and had no prior lengthy periods of incarceration which rendered you vulnerable to undesirable influences in an adult prison. He also noted some history of deliberate self-harm and suicidal ideation. Thus, he assessed you as suitable for a Youth Justice Centre order, but he did concede under cross-examination that the criteria which he had applied about your impressionability were generic criteria, rather than being factors particular to you which had emerged during the assessment interview with you.
42 Mr McLellan, you are to be given credit for abstaining from illicit drugs in custody and putting your head down and working, as well as undertaking courses that have been available to you. I have carefully listened to your counsel’s submissions and expressed my concern that a person, like you, aged nineteen years, should be in custody for the first time in an adult prison. You are obviously wary of making attachments with older offenders for fear that these may impact adversely upon you when you are released from custody. This potentially makes serving time in prison a more lonely experience than it might otherwise be. I have anguished with the disposition which should be given in your case because you are so young. I am very aware that rehabilitation would usually be the predominant sentencing principle when making a disposition for a young offender. However, after weighing up all matters, I have determined that a Youth Justice Centre order is not appropriate in your case.
43 Firstly I consider that the gravity of your offending on the aggravated burglary is such, that it should not be outweighed totally by considerations of rehabilitation, particularly given that you breached a rehabilitative disposition when you committed these offences. Although there are no victim impact statements, hearing the loud, aggressive and violent arrival of you and your co-offenders at the victims’ house as recorded on CCTV footage (Exhibit “B”) in the early hours of the morning, leaves me in no doubt that this was a nasty, frightening invasion when they were entitled to feel safe in their beds.
44 Secondly, it is a fundamental principle of the law that, generally, like offending should be punished with a like sentence. You have pleaded guilty to acting in concert with Mr Shanks and the other co‑offenders and are to be punished for the totality of the brutal, disrespectful behaviour in invading the sanctity of the house of your victims early on the morning of 11 February 2016. Although you did not take a weapon into the house, you did use a hammer on an innocent victim as he tried to escape and, by your presence, added menace to the intimidating conduct of your co‑offenders. Although Mr Shanks is older than you by some five years, he has had a very disadvantaged life compared to you. You had the advantage of two parents who loved you and gave you a secure and moral upbringing. In all of the circumstances, I consider that it would be unjust to give you a more lenient sentence to be served by way of detention in a Youth Justice Centre, particularly as you are to be sentenced for a more serious form of assault than he is.
45 After careful consideration, I have accepted that the appropriate sentence to be imposed for each of you is a combination sentence of a term of imprisonment and a Community Correction Order. This is a disposition which the prosecution has submitted is within range for this offending.
46 With the exception of a short period of drug taking in custody by Mr Shanks, you have both behaved well in custody by abstaining from drugs, working and involving yourself in programs of a rehabilitative nature. However, it is necessary for a further period in custody to be served by each of you in order to meet the sentencing principles of denunciation of your conduct, general deterrence and just punishment. The violent invasion of a home is something which the Court of Appeal has indicated should be the subject of appropriate punishment by Judges gradually uplifting the sentences that constitute current sentencing practice. A clear message must go out to the community that this type of vigilante behaviour, invading another’s home for the purpose of collecting an alleged debt, will not be tolerated particularly when fuelled by abuse of ice. However, against this, must be balanced your youth and the need that each of you have for rehabilitative programs. It is my view that the latter is appropriately achieved by a fairly lengthy Community Corrections Order after you are released from custody.
47 You, Mr McLellan, have pleaded guilty to the more serious charge of intentionally causing injury compared with that of recklessly causing injury which Mr Shanks faces. Both of you have prior offending for destroying property, Mr Shanks has a prior conviction for recklessly causing injury and, you, Mr McLellan, have two prior convictions for assault, one with a weapon. As I have already mentioned, Mr McLellan, it is an aggravating feature that this offending was committed in the context of you having been placed on a Community Correction Order only a few weeks beforehand. In addition, you have engaged in other offending which includes recklessly driving a car in such a way as to place others in danger of serious injury and multiple counts of making a threat to kill, together with other driving offences which apparently were recently the subject of a hearing in the Magistrates’ Court. These matters are not ones for which I have any role in punishing you, however, they do show how serious your misconduct has been whilst you have been abusing illicit drugs.
48 Thus, weighing up all the various matters, I consider that the same sentence should be imposed on each of you. I take into account that each of you indicated an intention to plead guilty at a relatively early stage and I consider that, since being remanded in custody, you each have gradually developed some insight into and some degree of remorse for your offending. You are thus entitled to a tangible and significant discount on the sentence which, otherwise, would have been imposed. However, the rehabilitative process has a long way to go. Provided you abstain from taking illicit drugs and, undertake rehabilitative courses and take the conditions of a Community Corrections Order seriously when you are released, then there is a reasonable prospect that each of you can be reclaimed to be contributing members of the community.
49 Would you stand up please, Mr Shanks.
50 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 12 months together with a Community Correction Order for a period of 4 years.
51 On Charge 2, recklessly causing injury, you are convicted and sentenced to be imprisoned for a period of 8 months.
52 On Charge 4, theft, you are convicted and sentenced to be imprisoned for a period of 6 months.
53 The base sentence of imprisonment is that imposed on Charge 1, aggravated burglary. I direct that 2 months of the sentence imposed on Charge 2 and 1 month of the sentence imposed on Charge 4 be served cumulatively upon the 12 month sentence of imprisonment forming part of the sentence on Charge 1. The total effective sentence is thus 15 months’ imprisonment, together with the Community Correction Order of 4 years imposed on Charge 1. That Community Corrections Order will commence upon the date of your release from custody.
54 I declare a period of pre‑sentence detention of 172 days to be time reckoned as already served under the sentence imposed this day.
55 I will make clear the terms and conditions of the Community Correction Order once I have articulated the sentence for Mr McLellan.
56 Stand up please, Mr McLellan.
57 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 12 months together with a Community Correction Order for a period of 4 years.
58 On Charge 3, intentionally causing injury, you are convicted and sentenced to 10 months’ imprisonment.
59 On Charge 4, theft, you are convicted and sentenced to be imprisoned for a period of 6 months.
60 The base sentence of imprisonment is that imposed on Charge 1, aggravated burglary. I direct that 3 months of the sentence imposed on Charge 3 and 1 month of the sentence imposed on Charge 4 be served cumulatively upon the 12 month sentence of imprisonment forming part of the sentence on Charge 1. The total effective sentence is thus 16 months imprisonment, together with the Community Correction Order of 4 years imposed on Charge 1. That Community Corrections Order will commence upon the date that you are released from custody.
61 I declare a period of 217 days pre‑sentence detention to be time reckoned as already served under the sentences imposed this day.
62 Mr Shanks and Mr McLellan, as I have said, when you are released from custody you will still have to serve a Community Correction Order for a period of 4 years. This will start as soon as you are released from custody. The terms of the Community Correction Order are as follows:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ab) You must comply with any obligation or requirement prescribed by the regulations;
(b) You must report to and receive visits from the Secretary during the period of the order;
(c) You must report to the Community Corrections Centre specified in the order within two clear workings days after the order coming into force;
(d) You must notify the Secretary of any change of address or employment within two clear working days after the change;
(e) You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
63 In addition to those terms, the following conditions apply:
(1) You are to undertake unpaid community work of 300 hours over the term of the order.
(2) You are to undergo assessment, treatment and rehabilitation in relation to drug abuse.
(3) You are to undergo assessment, treatment and rehabilitation in relation to mental health issues.
(4) You are to undertake any programs to address your offending as recommended by the Regional Manager.
(5) You are to be subject to supervision by the Office of Corrections for the term of the order.
64 Mr Shanks and Mr McLellan, you must be aware that I cannot make a Community Correction Order unless you are each prepared to consent to it and state that you will obey the terms and conditions of the order. Are you prepared to give such consent?
Mr Shanks: Yes, I do.
Mr McLellan: Yes, I do.
65 You must each be aware that, if you breach the Community Correction Order, either by not obeying the terms and conditions or by further offending, you will be charged with contravening that order which, in itself, is an offence punishable by 3 months’ imprisonment. Should that happen, you will be brought back before me and the high probability is that I will revoke the Community Correction Order and, instead, you will be resentenced to a further term of imprisonment. Is that clear?
Mr Shanks: Yes.
Mr McLellan: Yes.
66 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, Mr Shanks, the total effective sentence imposed would have been 5 years’ imprisonment with a non-parole period of 3 years.
67 Pursuant to s6AAA of the Sentencing Act, Mr McLellan, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 ½ years’ imprisonment with a non-parole period of 3 years and 3 months.
- - -
0
0
0