Director of Public Prosecutions v Stephen John Norman
[2015] VCC 204
•2 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02054
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Stephen John NORMAN |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 & 24 February 2015 | |
DATE OF SENTENCE: | 2 March 2015 | |
CASE MAY BE CITED AS: | DPP v Stephen John NORMAN | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 204 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – Intentionally cause injury – Theft – Relevant prior criminality – Young offender
Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
Sentence: 15 months detention in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Ballek | Office of Public Prosecutions |
| For the Accused | Mr N Rolfe | Nicholas W. J. Rolfe & Associates |
HIS HONOUR:
1 Stephen John NORMAN, you have pleaded guilty to one charge of aggravated burglary, two charges of intentionally causing injury and one charge of theft. You have admitted a prior criminal history comprising of a single appearance in the Echuca Children’s Court in February 2013 for theft, driving as a learner without an experienced driver and intentionally causing injury.
2 The facts of this case were opened by Mr Ballek, who appeared to prosecute in this matter, and are contained in the Summary of Prosecution Opening, Exhibit A.
3 In brief summary, your offending can be broken down into two separate incidents. The first incident occurred on the evening of 27 October 2013 when you, together with your co-offenders Liam Van Breda and Thomas Gniot, attended the victim’s house in Werribee. You knocked on the front door of the victim’s unit and asked whether a man by the name of “Wayne” lived there. The victim told you that no one named Wayne lived there. About ten minutes later, you returned to his unit and began knocking heavily on the front door and front window. You told the victim that you were going to stay there all day.
4 Shortly after that, the victim noticed that you had come around to the rear of the unit with two males, your co-offenders Van Breda and Gniot. The victim recognised Van Breda and Gniot from a friend’s house. The victim then became aware that you, Van Breda and Gniot were trying to manually open his garage roller door. The victim saw the roller door being opened, panicked, and ran to his bedroom at the front of the unit and hid in the cupboard. You and your co-offenders then walked under the roller door and entered the garage of the unit (charge 1 – aggravated burglary).
5 You then entered the victim’s unit through the kitchen door. Gniot was carrying a silver broom handle which he had taken from the victim’s garage. You and your co-offenders found the victim hiding in his bedroom cupboard, at which point he was punched to the head and body for about three minutes. Van Breda and Gniot held him down on the bed while you continued to punch him to the head and body. You carried out the bulk of the assault.
6 Van Breda and Gniot then left the bedroom while you continued assaulting the victim. The victim was then told to go into his lounge room where he saw Gniot holding a kitchen knife. The victim was asked for his wallet and for money while he sat on his couch, with you slapping him about the head ten to 15 times. Gniot then picked up a baseball bat and hit the victim over the head with it. You and your co-offenders laughed at your victim and told him he was a woman beater. You took out a mobile phone and took a photo of the victim, telling him you would send the photo to the daughter of a friend of the victim. You and your co-offenders then flipped the victim’s coffee table over, spilling items onto the floor. You then told the victim to get up and open the front door, and as you left one of you threatened to slit his throat if he contacted the police.
7 As a result of the assault, the victim suffered facial injuries, cuts to his hands, shoulder pain, swelling to his right eye socket and eyelid, and a cut to his tongue (charge 2 – intentionally causing injury). You and your co-offenders stole the victim’s mobile phone and a pouch of tobacco (charge 3 – theft).
8 The second incident occurred on the evening of 15 November 2013 when you saw the victim walking along Hodge Street in Werribee. You, together with two females, approached the victim and began arguing with him about the previous assault at his unit, resulting in you both throwing punches at each other. One of the women you were with yelled at you, telling you to stop assaulting the victim. You then pulled out a glass bottle of spirits from a bag you were carrying and struck the victim over the head with it, causing him to fall backwards onto the ground. The victim then heard the sound of the bottle smashing, and saw you standing over him with the neck of the broken bottle, having stabbed him three or four times in the stomach. You kicked the victim in the ribs three times and punched him in the stomach about six times. A short time later the police arrived. You told them the victim had assaulted you. You were told to go home.
9 As a result of the assault, the victim suffered three lacerations to his stomach area, two lacerations and bruising to his scalp, cuts to his face and nose, and pain and tenderness to his ribs, back, abdomen and spine (charge 4 – causing injury intentionally).
10 On your behalf your counsel, Mr Rolfe, submitted that I take the following into account by way of mitigation:
a) that you have pleaded guilty to the offending, demonstrating remorse for your actions;
b) that, despite your prior convictions for theft and causing injury intentionally, you are a young man of good character;
c) that you have a solid, uninterrupted history of study and employment; and
d) that you have strong prospects of rehabilitation.
11 Mr Rolfe further submitted that the appropriate sentencing disposition in this case is a Community Correction Order. He further submitted that yours is a case in which considerations of general and specific deterrence, and denunciation, are of less importance given your age, personal circumstances and misguided vigilantism.
12 I now turn to circumstances personal to you. You are now aged 19, having been born on 11 October 1995. You are the youngest of six siblings. Your parents divorced when you were 12 years old. You have a strong history of employment and study, completing Year 12 at Bendigo Regional Institute of Training in 2012 following schooling to Year 11 at St Joseph’s College in Echuca. In 2013 you moved to Werribee to be with your girlfriend, where you worked as a labourer for a local tiler. You returned to Echuca in October 2014 where you commenced full time employment with Kagome, a tomato processing business. You currently reside with your mother at Nanneella, a small rural hamlet south of Echuca.
13 The first episode on 27 October 2013 involved elements of terror and intimidation for the victim. You and your two co-offenders effectively ‘surrounded’ his unit, banging on the doors and windows demanding entry. Whilst the victim has not filed a victim impact statement, I am satisfied that it was a terrifying experience for him. He could see that you and Gniot were big bodied. He beaten by you whilst being held by Gniot and Van Breda. This was a cowardly act. At one stage he was placed in a headlock which caused him almost to lose consciousness. You were the instigator of the first episode and the principal aggressor, both in the bedroom and later in the lounge room.
14 The second assault was highly dangerous. You told police that you struck the victim three time over the head with a vodka bottle and stabbed him three of four times in the stomach. It was a cowardly and brutal assault. Hitting him with the vodka bottle was a highly dangerous activity as was stabbing him with the broken neck. This may might have ended with catastrophic consequences. You were drunk at the time of the incident. You were truly fortunate that no serious injury resulted.
15 You have a relevant prior conviction. It was sustained when you were only 16 years old. The circumstances of that offending were that, while having lunch with some school friends at a mall in Bendigo, you assaulted a young man known to you by approaching him from behind and repeatedly punching him in his head. It is of interest that on this occasion as well as the present offending, the motivation was apparently to seek some of form of redress for a slur cast on a woman. Whilst such conduct may appear to some to be somewhat chivalrous it is in fact completely misplaced and unlawful.
16 In the present matter, your co offender, Gniot, was dealt with in the Children’s Court where he was placed on a bond to be of good behaviour. He was younger than you but, I am informed, bigger than you. Whist he is a co-offender, the principles of parity do not, strictly speaking, apply, he having been sentenced as a child even though the ages of the both of you are similar.
17 You are now 19 years old and were 18 at the time of offending. Special considerations apply to the sentencing of young offenders. Rehabilitation is considered far more important than punishment and where possible the sentencing of youthful offenders should not be used as appropriate occasions for the giving of general deterrence messages. Where a sentence is unavoidable and where the offender has not previously been incarcerated, a shorter period of imprisonment or detention may be justified.
18 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
19 Aggravated burglary is a most serious offence as is evidenced by the fact that a maximum penalty of 25 years imprisonment applies. Gangs of young thugs such as you must understand that invading someone’s house in numbers and inflicting a cowardly and brutal attack will not be tolerated. The assault in the street where you struck the victim three times to the head with a liquor bottle and then stabbed him in the abdomen could have easily seen you charged with a much more serious offence and resulted in serious harm or even death.
20 As you know, last week I sentenced Liam Van Breda to an 18 month Community Correction Order. He of course was not involved in the second episode and played a relatively minor role in the aggravated burglary. He had mitigating factors that do not apply to you and in particular had no prior criminal history.
21 The requirement that like cases be treated alike, and that there be appropriate differentiation between unlike cases, is fundamental to the criminal justice system and to the maintenance of public confidence in the system.
22 Your counsel urged upon me to release you on a community corrections order. I have given anxious consideration to this submission. Recently the Court of Appeal in Boulton,[1] provided guidelines concerning the imposition of community correction orders. The Court recognised that a CCO is by its nature punitive, and may be appropriate even for offences of some seriousness. Section 5(4C) of the Sentencing Act 1991 now provides that a court must not impose a sentence of immediate custody 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. I must ask myself whether a sentence of confinement, with all its disadvantages, is the only option. In other words that a CCO with conditions that would be both punitive and rehabilitative is not open.
[1]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
23 I have come to the view that the totality of your offending requires a sentence of immediate custody. The proximity of the second incident to the first, its seriousness and the leadership role you played in the aggravated burglary and assault, distinguishes you quite significantly from your co-offenders. In my view a CCO is not sufficient to deal with your behaviour. Only a period of custody will adequately serve the sentencing principles which I must apply. I have had you assessed for a youth justice centre order and am satisfied that one is appropriate. It is undesirable that you be exposed to adult prison and that your prospects of rehabilitation will be best advanced in the juvenile justice system.
24 As I have come to the view that a substantially different sentence than the one imposed on Mr Van Breda is warranted in your case, I also propose to moderate your sentence solely to ameliorate in some part the sense of grievance that you will feel about the disparity in sentencing between you and him.
25 I propose to sentence you to an aggregate term. I am satisfied that even though the second episode is separate from the first, by some four days, it seems to me nevertheless to be part of an ongoing course of conduct.
26 Would you please stand.
27 On each of the charges, you are convicted and sentenced to be detained in a Youth Justice Centre for 15 months.
28 I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent. I am obliged to tell you though that notwithstanding that you have consented to the procedure, I am obliged to inform you that if you resist the taking of the sample, reasonable force may be used.
29 Section 6AAA Sentencing Act requires me to state the sentence, being the total effective sentence, and non-parole period that would have been imposed but for your plea of guilty. Had you pleaded not guilty and been convicted by a jury, I would have sentenced you to 30 months’ detention in a Youth Justice Centre.
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