Director of Public Prosecutions v Stilsby

[2024] VCC 320

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00880

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY STILSBY

---

JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2024
DATE OF SENTENCE:	18 March 2024
CASE MAY BE CITED AS:	DPP v Stilsby
MEDIUM NEUTRAL CITATION:	[2024] VCC 320

REASONS FOR SENTENCE

---

Subject:Criminal Law – Sentence – guilty plea

Catchwords:              Sentencing – aggravated burglary – damaging property – assault in company – early plea – plea after committal – no relevant criminal history – low risk of reoffending – high prospects of rehabilitation – medical hardship in custody – lack of anti-social personality traits

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:Total effective sentence: 10 months imprisonment followed by CCO with conviction for 18 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	J. Ellis	Office of Public Prosecutions
For the Accused	M. Kozlowski	Papa Hughes Lawyers

HIS HONOUR:

1Corey Stilsby, you have pleaded guilty to aggravated burglary and damaging property occurring on 30 November 2022. You have also pleaded guilty to a summary offence of assault in company arising from the same incident.

Summary of offending

2The agreed basis for your guilty plea is set out in the prosecution opening.

3In summary, at about lunchtime, on 30 November 2022, you were talking with a friend of yours, Jake Baldwin, on the phone. You had a misunderstanding and started to abuse him. When you called him again, he did not answer, so you sent messages to him, swearing that you were going to 'rock' him. He blocked your messages so, you sent messages to his housemate, Mr Smark, saying you were going to their place after work to 'get' Baldwin.

4At about 9.20 pm that night, you went to their home in O'Neills Road, Melton.

5Getting out of your vehicle, you started yelling out for Baldwin and threatening to smash his car. Smark told you to leave but you did not stop. Seeing Baldwin over the side fence, you approached. He told you to calm down so that you could talk. Rather than calming down, you ran over to the gate and hit him.

6Baldwin was holding a hammer, and in response, he swung it at you, hitting you in the head. You walked away saying you were going to get your boys and that Baldwin was ‘fucked’.

7Baldwin went inside and called police. Before they arrived, you returned with five others in three vehicles.  You and at least two others walked into the front yard calling out aggressively to Baldwin. At least one of the others had a baseball bat.

8The front door was shut, and you kicked the screen door. You asked
Mr Smark for his keys and searched a vehicle in the driveway for them. You then patted him down and found his house keys in his pocket.

9The man you were with threatened to break Smark's legs if he did not open the front door. Smark complied. That man marched Smark into the house, holding a baseball bat to his back (summary offence 3, assault in company).

10You followed them inside in those circumstances (Charge 1, aggravated burglary). 

11Inside, you searched for Baldwin throughout the house, tipping up furniture as you went.  Your search proving fruitless, you left the house and your co-offender proceeded to smash the windows of his car, for which you were present and complicit (Charge 2).

12As you did so, you threatened Smark out loud, saying that if Baldwin was not there when you returned, you would steal all of the cars from the property.  Police arrived a few minutes later and gathered evidence, but you had gone.

13Two weeks later, on 13 December 2022, police arrested you at your home. They interviewed you, and you admitted to being at the house that day and identified yourself in the footage that they had obtained. You denied arranging others to be there, and said you went into the house without force and only to have a conversation with Baldwin.

14Mr Smark provided a victim impact statement dated 13 March 2024 (Exhibit A) and stated that he feared for his safety when you went to his house. He could not sleep following the incident, became depressed and was off work for weeks. He lost his job, had to move house, and was too afraid even to go out to the shops or family events for fear of being seen by you or your friends and attacked again.  I accept that similar impacts are likely to have been felt by Baldwin, but he has chosen not to make a victim impact statement.

Procedural history

15You contested the charges during the committal stage of the case.  You had witnesses called at a contested committal hearing and they were cross-examined about the incident, and you denied any intention to assault Baldwin or entering his home with a weapon.

16During a case conference before me, having perhaps reconsidered the strength of the evidence against you, you instead sought a sentence indication; the prosecution did not oppose this.

17The prosecutor agreed to an indication being given on lesser charges than were originally proposed. Following the indication that I gave, you agreed to plead guilty.

18While you did not plead guilty at an early stage, it nevertheless shows that you take responsibility for what you did, you are willing to help progress the case appropriately, and it demonstrates a degree of remorse about what you did.

19Your plea has also saved everybody involved and the wider community the cost and inconvenience of a trial by jury which would have taken a week or more.

Personal circumstances

20You come from a good family, all of whom remain in support of you in spite of what you did. You may not realise it, but this sets you apart from many people who appear in this court who have no family support. You should reflect on this, if I may suggest, as you consider the path you take in your future.

21You were 28 years old at the time of your offence, and you are now 30. Since leaving school at about Year 10, you have been a regular worker and contributor to your community. This is something to be proud of.

22However, having lost your job and recently your relationship of some eight or nine years, and been placed in custody, you now have firsthand experience of the disruption caused to people's lives by serious offending – whether you are the offender or the victim.

23You have a minor criminal history, essentially driving offences dealt with in 2014 and 2015 by way of fines. They are not relevant to this case, and I have had no regard to them in deciding what sentence to impose.

24You have now been on remand for about two weeks. You have had a taste of what is to come.  I will turn to the difficulties you have had with medical treatment in a moment.

25Forensic psychologist, Warren Simmons, has provided a report about you dated 3 January 2024 (Exhibit 1). In it, he states you grew up in a home free from violence and that you enjoy close relationships with both your parents now and your five younger siblings. You told him that while you smoke cannabis, you have essentially avoided harder drugs over the years, particularly since you commenced your relationship with your girlfriend of eight years, as she was at that stage.

26The history that you told him, including about living with insulin dependent diabetes since your early years, suggests that while you lack confidence and you have social anxiety, you do not seem to have any significant antisocial personality traits. Without engaging in formal risk assessment, he suggests your risk of further offending is likely to be low.  Both of these things are a significant positive when it comes to assessing your prospects for rehabilitation.

27Mr Simmons recommends that you continue to see a counsellor, which you have started recently, and I accept that this would be beneficial to you, particularly as you move through the prison system. It may also help you find ways to deal with your anxiety and the challenges you face because of diabetes successfully.

28I have had regard to the very positive references written by your friends and family, namely, Dhieu Monoah, Christopher Burton, Sharon Shepherd, Luke Mackie, Sue McDermott, Jason Marks and Zoran Ivanoski (Exhibit 2).

29They all speak of your generosity and friendship. They say that you are usually respectful, polite and empathetic towards others. On the sporting field, you are known to be a good team player and someone who would stop to assist others. They say that this offending is contrary to your usual character, and I accept that.

30As to your experience on remand, even though the remand order that I made was endorsed with notation about your type 1 diabetes and the need for medications at specific times of the day, on at least one occasion, as you report it, this has not occurred and consequently you were hospitalised due to a quick deterioration in your condition, as can be expected with his particular disease.

31Your lawyers have acted quickly to notify the prison of your vulnerability, and in light of what you told me this morning today about what I have just described, I requested that the authorities provide a medical witness during a further hearing held just now about your treatment.

32I accept that the adjustment required upon your remand has been deleterious to your health.  I accept also what Dr Deep Joseph, Medical Director at Port Phillip Prison, said, that successful treatment of type 1 diabetes, insulin dependent diabetes, does require cooperation between medical practitioners and the patient.

33I am not blaming you for anything that has happened in the last 10 days, but I do find that the adjustment you will have to make to successfully managing your condition in custody, with all of the limitations and the lack of control you have about your own movements around the prison, will be difficult.

34As has been demonstrated today with Dr Joseph very candidly describing your treatment and the challenges you have faced over the past week, I expect that you will live with a sense of vulnerability and increased stress throughout your prison term knowing that you cannot always manage your own movements or the treatment that you would get at the time that you would choose to have it.  That is a form of hardship in custody which in my view will lead to a decreased sentence.

Sentencing issues

35The maximum penalty for aggravated burglary is 25 years' imprisonment, and for causing damage, it is 10 years.

36Summary Charge 3, assault in company, has a maximum of 2 years.

37Your counsel, Mr Kozlowski, submitted that your aggravated burglary is less serious, because there were no actual assaults and any assault that would have occurred, if you had found Mr Baldwin, would have consisted of yelling at him, and putting him in fear, rather than actual physical contact. He further submitted that you intended it to be a relatively benign confrontation.

38As I expressed during the sentence indication, I found this hard to accept. As I set out above, your conduct in the lead up to the offending on that day, was violent, persistent, and focused on 'getting' Mr Baldwin. If you had located him, I find that you would have physically assaulted him, at least to some degree. It was clearly your purpose, or at least your threats, and you were the one who arranged others to attend at his home to give effect to that purpose.

39Your conduct on this day may well have been out of character, but it was a violent attempt by you to bully and threaten another person; to show him that you were to be feared, or that he should not speak disrespectfully to you over the phone. Whichever it was, I hope on reflection you can now see how like a petty schoolyard spat this was. If your referees are right, you are better than this. I will impose a sentence that gives you a chance to show that you are.

40Entering somebody's home, where they are entitled to be safe, with violence on your mind, is a serious crime. You will be in prison because of it, and to send a warning message to others who might be tempted to do so. Prison is intended as a real punishment, and to show the community's denunciation of what you did.

41In sentencing you, I have not given much weight to specific deterrence at all, that is imprisoning you longer to teach you a lesson, or in order to protect the community from you, because your criminal history is effectively zero, and I find your prospects of rehabilitation in all those circumstances to be good.

42I sentence you as follows:

On Charge 1, aggravated burglary, 10 months' imprisonment and a community correction order.

On Charge 2, causing damage, 2 months' imprisonment, concurrent, and a CCO.

On summary Charge 3, assault in company, a CCO.

43Charge 5 was withdrawn and I mark that as being struck out.

44The sentence on Charge 2, as I said, is to be served concurrently with the sentence on Charge 1, making the total effective sentence 10 months, to be followed by a CCO.

45The CCO is with conviction and it will last for a period of 18 months upon your release. Beyond the standard conditions which restrict you from leaving the state, and that you must have visits and attend appointments, the further conditions are that you must be supervised.  That means meetings, perhaps weekly, perhaps monthly, with Corrections.  If you gain their trust they will permit you fewer sessions.

46You are to engage in assessment, and if required, treatment for your mental health, engage in assessment and if required treatment for drug abuse (including testing if you seem to be drug affected), and you are to engage in programs if required to reduce the risk of re-offending.

47I declare that you have served 12 days now of pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

48In accordance with s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 2 years and 9 months and fixed a non-parole period of 18 months.

49I tell people who I give a CCO to the following.  Some of those conditions are about assessment.  If you attend assessments and are cooperative, that may be the only thing you see from Corrections about that issue, whether it is your mental health or your drug use, but I expect you to engage with further treatment if they assess you as needing it.

50The worst thing in the world is to be brought back here on a breach of CCO, having done time in prison, and to face me locking you up for another three months because you did not turn up, or that you did not engage with counselling. So as galling as it may be, if you do not think you have got a drug problem, if they tell you to go to counselling, you go.  Any breaches of those conditions you will be brought back to me.

51The flipside is that if any of those conditions are being managed unreasonably, or if they are impossible for you, then you should ask your lawyers to bring the matter back to court before you get breached to explain why it is so difficult, and I will make orders without you having to be punished for breaching the order. So, you have some control over it.

52I truly hope that in less than 10 months, including by way of reductions because there will inevitably be lockdown days that you will have counted twice or three times, that you are out engaging in the CCO and I do not see you again.  I truly hope that is the case and I wish you good luck.

‑ ‑ ‑