Director of Public Prosecutions v Smart

[2016] VCC 1401

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR-16-01385

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN PAUL SMART

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	21 September 2016
DATE OF SENTENCE:	21 September 2016
CASE MAY BE CITED AS:	DPP v Smart
MEDIUM NEUTRAL CITATION:	[2016] VCC 1401

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr K..J. Doyle	OPP
For the Accused	Mr A. Paull	Criminal Lawyers Geelong

HER HONOUR: 

1Jayden Smart, you have pleaded guilty to one charge of aggravated burglary and one of common assault.  The two charges arose out of the same incident on 4 April of this year.  You had very recently, one week earlier, according to your count, four weeks earlier according to the count of Eden Houlihan, broken up after a relationship of some ten months or so.

2This, it would appear, was your first serious relationship and you had not only taken the relationship with Ms Houlihan seriously but you had assumed the role of father or step-father to her two year old daughter. 

3You went to her house at night.  You told the police in order to collect some clothing. It was certainly an unannounced arrival.  She was not expecting you.  Whether you did go there to collect your clothing or to check on her is really not to the point and does not affect the sentencing.  However, you went around to the side and then back of the unit and looked in through the window and saw Ms Houlihan sitting on the bed watching television with a male. 

4You were upset and angry as a result of seeing her with somebody else, forced your way into the house against and over the protests and efforts of Ms Houlihan to keep you out. 

5You were obviously enraged by the presence of another male there and were saying things that suggested you felt you had a right to possess or control her movements and who she saw notwithstanding the fact that the relationship was over. 

6You ultimately pushed through the door causing some damage in the process, barged your way into the bedroom, there confronted the male who was sitting on the bed and punched him to the face a number of times.  Ms Houlihan continued to try and get you out of the house.  You calmed down after you had punched the man and as Ms Houlihan was on the phone to Triple 0 and trying to get you out, it would appear, you went back to the bedroom in an attempt to apologise.

7You left the house and responded to a police phone call to you a short time later.  You presented yourself to Geelong Police Station where you were interviewed and made full admissions to your conduct.  You told the police that you had looked in the bedroom window, seen your former partner in bed, or it would appear to be actually on the bed, with somebody else, that that had caused you to become angry, that you forced entry to the unit although Ms Houlihan was trying to keep the door closed and asking you to leave.  You told the police that you were angry because there was someone in there and you had only been broken up for a short time.  You acknowledged that you had damaged the door in order to obtain entry and that you had forced your way in. 

8Forcing your way into a property where you know or reasonably believe that somebody is present constitutes the offence of aggravated burglary.  That is a very serious offence marked in part by an understanding that nobody can just force their way into, break their way into somebody's home and also by the fact that parliament has imposed one of the highest levels of imprisonment available as a maximum, namely 25 years imprisonment. 

9Common assault, slapping or punching somebody in the face, but without causing lasting injury carries a maximum of five years' imprisonment.  These are very serious offences for a 20 year old who has never been in trouble before to find himself facing and to find himself facing his first court appearance, this court, rather than the Magistrates' Court. 

10Normally, such charges particularly the aggravated burglary and the circumstances in which it occurred, jealousy, trying to find out what your ex-partner was doing and reacting angrily and forcing your way into her house when you discovered she was with someone else, would normally carry a term of imprisonment.  /but a combination of your youth, your family support and your obvious and immediate remorse and the steps you have taken since then to address that jealous anger and to your anger generally demonstrate that you are a young person who deserves another chance.  You risk of re-offending and the need for punishment can be dealt with in the community by the imposition of a community correction order.  That is not to minimise the seriousness of the offending itself and I have no doubt that you understand now you should not have acted as you did.  That it was indeed a serious criminal offence, a serious and significant violation of Ms Houlihan's right not only to live safely in her home but to her right to autonomy over her own relationships and her own decisions as to who she sees.  Whilst in emotional terms and moral terms people can properly want to hold each other to account, forcing your way into someone's house and punching somebody because you believe they are in a relationship with someone who you had been perviously is simply unacceptable conduct.  That is why it falls foul of the criminal law and why you find yourself here today. 

11I am very impressed not only with the evidence I heard about your loving and supportive family and the efforts they have made through your troubled schooling and after school to help you deal with what was clearly a continuing depression and a continuing difficulty in engagement with education and work, but also with the efforts you and they have made since.  You were charged with this, to confront the seriousness of it and to try and deal with the underlying causes. 

12You had twice already in your adolescence been to the Lara Medical Centre for assistance with behavioural problems and anger and anxiety.  Immediately following this you took yourself off there again and have been engaged and very constructively with Headspace in Geelong.  You have attended five sessions with Ms Goodman addressing anger management and poor impulse control and the report from her indicates that you have been very well engaged.  She indicates your understanding, and the need to continue your engagement and to continue to look for the assistance you need to stop yourself acting in that way. 

13You have also now been prescribed medication that seems to assist with your levels of depression and so, being able to feel better about yourself and better - not so defeated, about having prospects for having a much more fruitful and useful life and the formation of much better and more satisfying relationships in the future. 

14Many people who come before the court come before me saying they are very sorry but they have done nothing to help themselves.  I am very much impressed with the efforts that you have gone to and clearly of your own volition and with the assistance of your parents and your family.  Your mother clearly by her professional work understands the needs of helping people who are struggling with their mental health and of helping them to help themselves and no doubt she has been of considerable assistance to you. 

15She has also - and your family generally - have assisted you to try and engage you in employment although that has been difficult not only because you left school young but because employment in this region is difficult and again, it is to your credit that you have now completed your Certificate III and you are actively looking for work. 

16Part of what I am going to do in this community correction order is impose a condition for unpaid community work.  That is not only a punitive element but it is something I hope will assist in your rehabilitation of hopefully giving you some work skills.  Some understanding of the discipline that is required in turning up when you are required to, staying for as long as you are required to and doing what you are required to.  It may well also be of assistance to prospective employers who would otherwise look at your record to say, well, he left school in Year 9, he has not had much employment, I do not feel confident that he can stick at it.  If you can show that you have stuck at your unpaid community work as part of your community correction order then that is something positive that potential employers will have to see that you are somebody who has got the ability to stick at something and therefore worth giving a job to. 

17So, I hope you see it as in part, giving you employment skills and employability as well as punishment.  Although you are sorry for what you have done and I feel reasonably confident with supports around you, you will be unlikely to offend again, it is important that there is a punishment element to this sentence, and that is achieved first by recording a conviction against your name, second by subjecting you to supervision and third, by subjecting you to the order for unpaid community work. 

18I had asked for you to be assessed for a treatment and rehabilitation condition in relation to your mental health but Corrections takes the view that because you are so well linked in with Headspace and are being appropriately serviced through there at the moment that there is no need to make that a special condition of your community correction order.  But, because I am imposing a condition of supervision, if you do not engage or do not continue to engage with Headspace and corrections takes the view that you need a further referral, they have the power to do that under the supervision condition. 

19So the means, the back up support is there but essentially, I am leaving it up to you and Corrections is leaving it up to you to pursue that course.  You have already started on and embarked on counselling so well with Headspace, I hope you understand how much it is in your interest to continue with them. 

20So, although it is important to say young people in the throes of young love, you cannot act out of jealous rage and do what you did, it is also understandable that young people are not as in control of their actions as older people should be and so deserve more chances.  That is why the need to denounce your behaviour and the need to punish has to be moderated and the need to encourage your rehabilitation so well underway is the dominant factor in sentencing you.  So, that is why I am imposing the order that I do. 

21I suspect it has been a big strain for you and for your family coming up to today.  I hope that you cannot put it behind you, not in the sense of forgetting it, but see it as a valuable lesson learned and one that you can continue to learn from rather than beat yourself up about.  So that you can continue to benefit from the support that your whole family and your friendship circle have been giving you but without de-valuing the seriousness of what you did.  Could you now please stand? 

22Jayden Smart, on the two charges to which you have pleaded guilty you are convicted.  You are sentenced to a community correction order for a period of 12 months.  That order commences today, 21 September 2016, and ends on 20 September 2017. 

23There are mandatory terms that apply to all community correction orders.  They are these: That you must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations.  That means you must not be impaired by drugs or alcohol when you attend for any of your visits or community work with Corrections and you must submit to drug and alcohol testing if directed to do so. 

24You must report to and receive visits from the Secretary or Delegate.  You must report to the community corrections centre here at the State Government Offices at Level 5, 30A Little Malop Street, Geelong within two clear working days after the commencement of this order.  That means by Friday of this week.  You must let a community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary or Delegate and you must obey all lawful instructions from and directions of the Secretary or delegate. 

25In addition to those mandatory conditions, I impose the following special conditions. First, that you must perform 120 hours of unpaid community work over the period of 12 months of the order as directed by the regional manager. If you fail to comply with this condition, the Secretary of the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83 AU of the Sentencing Act. 

26You must be under the supervision of a community corrections officer for the 12 month period of the order and you must participate in programs and/or courses that address factors relating to your offending as directed by the regional manager. 

27Do you understand the effect and conditions of the order? 

28OFFENDER:  Yes, Your Honour. 

29HER HONOUR:  Do you consent to it being made? 

30OFFENDER:  Yes, Your Honour. 

31HER HONOUR: In addition, I have been asked to make an order under s.464ZF of the Crimes Act in relation to the taking of a forensic sample and it being placed on the database.  Having regard to the circumstances and the nature of the offending I consider it appropriate to do so.  I direct that that forensic sample be provided by the taking of a scraping from your mouth.  That is called the provision of a buccal sample.  You need to scrape a swab like a cotton bud on the inside of your mouth until a sufficient sample has been provided. 

32If you do not comply with that requirement to provide that mouth swab then the police are authorised to use reasonable force and they will likely use the more invasive means of obtaining a DNA sample namely taking of a blood sample.  Do you understand that? 

33OFFENDER:  Yes, Your Honour. 

34HER HONOUR:  Now, there a very complicated time frame for provision of that sample.  You must let a month go by to allow the time for appeal to expire and then you must attend at the police station within a month after that.  So, you cannot attend until 20 October and then you must attend within a month after 20 October at the Geelong Police Station to provide that sample.  Do you know where the Geelong Police Station is?  Next door here at 110 Mercer Street. 

35I will sign that forensic sample order whilst Mr Paull takes that CCO down to you and has you sign it.  Acknowledge that you are bound by it and sign it.  This has got the address of 4 Gambier Grove; is that right? 

36MR PAULL:  It should be 30 Croatia. 

37HER HONOUR:  I am sorry, we have got to get that changed and is Mr Smart going to have to re-sign it?  I am sorry.  It has got the wrong address.  We have got to print out one with the correct address.  I had better get you to come back at 2.15.  I am sorry for that.  It will be exactly the same order but just with your correct address on it.  Sorry family, you will have to come back at 2.15. 

(Short adjournment)

38HER HONOUR:  Right, here is the revised community correction order with the address of 30 Croatia Place. It is Norlane; isn't it? 

39MR PAULL:  Yes, Your Honour. 

40HER HONOUR:  It is otherwise the same.  Can you just, Mr Paull, have Mr Smart sign that?  Right, I have countersigned that.  As soon as a copy has been made you will be free to leave, Mr Smart.  We will just have that copy done for you now.  Thank you, Mr Paull. 

41MR PAULL:  Thank you, Your Honour. 

42HER HONOUR:  All right. 

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