Director of Public Prosecutions v Sutcliffe-Carey
[2023] VCC 2166
•1 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00601
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL SUTCLIFFE-CAREY |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2023 | |
DATE OF SENTENCE: | 1 September 2023 | |
CASE MAY BE CITED AS: | DPP v Sutcliffe-Carey | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2166 | |
REASONS FOR SENTENCE
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Subject:-CRIMINAL LAW-
Catchwords: Young offender – aggravated burglary – common assault – using an unregistered motor vehicle on a highway - rehabilitation of youth in community interest – youth justice centre – detention.
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Meyers [2014] 44 VR 486.
Sentence: Total effective sentence of 18 months’ detention in a youth justice centre.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Dearman | Office of Public Prosecutions |
| For the Accused | Ms I. Siriwardana | Victoria Legal Aid |
HIS HONOUR:
1Samuel Sutcliffe-Carey, you have pleaded guilty to the following charges on indictment no. N12556697:
(a) One charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (Vic), carrying a maximum penalty of 25 years’ imprisonment; and
(b) Two charges of common assault contrary to common law, carrying a maximum penalty of 5 years’ imprisonment.
2You have also pleaded guilty to one uplifted summary charge of using an unregistered motor vehicle on a highway contrary to s 7(1) of the Road Safety Act 1986, carrying a maximum penalty of 25 penalty units.
Circumstances of offending
3The circumstances of offending were set out in the Summary of Prosecution Opening dated 17 July 2023 tendered as Exhibit A on the plea. Your counsel did not dispute that it was an accurate summation of your offending.
4On Friday, 25 November 2022, you and your ex-partner Ms Lamb were texting throughout the day about issues from your past relationship. At 11:50 am, Ms Lamb said, “Sam I don’t want to be with you”. At 1:15 pm you asked, “Can I come see u tonight and we can talk. Please”. Ms Lamb replied, “no”.
5You also sent Ms Lamb’s partner, Mr Lemmer, a series of text messages wanting to meet. Mr Lemmer replied at 5:32 pm stating, “what’s the point of all this lad, she dun like you”. You then continued to send Mr Lemmer further messages including “Yea sweet I’ll meet you wherever tonight cuz pick a place and I’ll be there”.
6Later that evening at 8:14 pm, you and a friend attended Ms Lamb’s workplace, namely Tocca Restaurant at Werribee. Ms Lamb was at work and turned around to see you staring straight at her. She said to her boss, ‘I’m going to faint’.
7At 8:17 pm, Ms Lamb sent a text message to you asking why you were there. You responded “I’m here for a drink eith (sic) my mate. And I texted [Lemmer] all of that coz he deserves what’s coming to him.” At 8:21 pm, you and your friend left the restaurant.
8Ms Lamb left work early due to being upset at seeing you at her workplace. Mr Lemmer collected her, and they returned to Ms Lamb’s home address in Hoppers Crossing.
9From about 10:04 pm, you sent Ms Lamb a number of messages wanting to know if she was with Mr Lemmer and whether you could see her later that night. Between 10:07 pm that night and 2:22 am on 26 November 2022, you also called Ms Lamb’s mobile phone 35 times. Each of the calls were either unanswered or 1 to 3 seconds long in duration. At 11:18 pm, you demanded via text that Ms Lamb show you that she was not with Mr Lemmer.
10Between 11:30 pm and midnight, Ms Lamb and Mr Lemmer went to bed upstairs in Ms Lamb’s bedroom. At 12:25 am on 26 November 2022, you texted Ms Lamb, “I’m out front of your house”. You asked her to “just come to the door” and you sent a photograph to her of her front door.
11At 1:17 am, Ms Lamb told you that she had Mr Lemmer staying over. You sent a response, “Have u really got him over like for real. Tell him to come out. I’m kicking down doors tell him come out Rn”.
12At about 3:15 am, you entered Ms Lamb’s home through the unlocked backdoor and went upstairs to her bedroom (Charge 1 – Aggravated burglary). Ms Lamb woke up and saw you punching Mr Lemmer to the face and body multiple times (Charge 3 – Common assault).
13Ms Lamb’s father, John Lamb, heard yelling from his daughter’s bedroom and upon checking and seeing the altercation he tried to restrain you. You then picked up Ms Lamb from under her arms and slammed her against the door. Shortly after, you pushed Ms Lamb onto the ground and punched her to the face (Charge 2 – Common assault).
14At 3:18 am, Ms Lamb called triple 000 for assistance. You left the property through the backdoor and jumped over the back fence to a neighbouring property.
15At approximately 3:26 am on the way to the scene, police intercepted you driving in a white Ford Falcon (registration ending 795) in the opposite direction. At this time your car was not registered, and this constitutes the summary offence for using an unregistered vehicle.
Objective gravity of offending
16Mr Sutcliffe-Carey, the offence of aggravated burglary is a very serious offence. That fact is plain from the maximum penalty of 25 years’ imprisonment. The Court of Appeal in this state have made the following comments in relation to such offending:
‘Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or particular partner must realise that if they do so, they will almost certainly spend a long time in prison.’[1]
[1] DPP v Meyers [2014] 44 VR 486, 498 [46].
17In that particular case, the offender had entered the premises with a weapon. Fortunately, that is not the situation in your case. Nevertheless, your case is serious as it is not in dispute you entered this home, in the early hours of the morning, without permission, intending to assault Mr Lemmer, and in accordance with your earlier threatening messages. While there are some hallmarks of immaturity in the offending, it could not be said to be spontaneous or completely unplanned.
18Once inside the residence, your assaults upon Mr Lemmer and Ms Lamb were in the context of you punching Mr Lemmer to the face and body multiple times. You then assaulted Ms Lamb by slamming her against a door and punching her to the face. Ms Lamb was in her own bedroom and entitled to feel safe. Your actions were for no reason other than to satisfy your own feelings of jealousy. Fortunately, it is not alleged that your assaults caused any long-term injuries suffered by the victims. Although neither victim has chosen to make a victim impact statement, I have no doubt the assaults upon the victims and trespass into their home would have caused them considerable distress.
19The seriousness of your offending is also reflected by your counsel’s realistic concession that the only appropriate sentence in the circumstances is a period of custody or detention.
20The real issue that has been litigated before me is whether in all the circumstances a period of detention in a youth detention centre as opposed to a period of imprisonment is the appropriate sentence and the length of such confinement.
Personal background
21Your background is detailed in a psychological report prepared by Ms Naomi Cameron, and in written submissions prepared by your counsel, Ms Siriwardana.
22You will turn 21 in a few days and were aged 20 at the time of the offending. You were born in Queensland, and you have one older sister. Your family moved to Werribee in Victoria when you were about 4 years old as this suited your father’s employment opportunities. Your mother, a secondary school teacher, is described as a deeply religious person and your family were involved in the Christian Church while you were in primary school years. Your friends as a child were from the same church community.
23You had some learning difficulties at school and required the assistance of a teachers aid to keep up with maths and English classes.
24Your father and mother encountered problems in their marriage and when you were in your mid teenage years your father and mother divorced, and your father disclosed that he was having homosexual relationships. This caused you to be somewhat ostracised from your local community and in 2019 your mother moved to Queensland, and you resided for at time with your father.
25You managed to complete Year 9 at Werribee Secondary College then managed to get work as an apprentice bricklayer, and then in an abattoir. You also in more recent times managed to get some work in hairdressing that you have told others was the job you most enjoyed.
26Unfortunately, by this time you were suffering ‘problematic polysubstance abuse.’ You were drinking alcohol excessively, smoking cannabis and regularly using cocaine and ecstasy.
27In 2019 you were charged with armed robbery (amongst other charges) and sentenced in the children’s court to probation for 9 months. I was told at this time you lived with your father who was the only member of your family remaining in Victoria. You were subsequently dealt with for a further offence of robbery and on 17 September 2021 sentenced in the Magistrates’ Court to a 12-month Community Corrections Order.
28This, I was told, caused friction between you and your father and you were evicted from home. This led to a period of homelessness where you were living in your car. You continued to suffer unstable housing up to the time you committed the offences that are now before me.
29You have been dealt with in the Magistrates’ court in 2022 for charges of theft of a motor vehicle, driving, and bail related offences and were convicted and fined for this offending.
30The Community Corrections Order that had drug treatment conditions and offending programs attached appears to not have been effective. I was told a combination of factors, such as your homelessness, the COVID pandemic, and the death of your grandmother in July 2022, impacted upon your ability to successfully comply with your obligations under that order.
31You have remained in gaol since your arrest for this offending on 26 November 2022. This has been your first experience of adult gaol and I was informed by your counsel that this experience has had an impact upon you.
32You were psychologically assessed in custody and described symptoms to Ms Cameron that in her view were consistent with Attention Deficit and /or Hyperactivity Disorder (ADHD). Ms Cameron administered psychological tests and based on those tests and her clinical assessment expressed the view that you suffer the following clinical disorders:
· Major Depressive Disorder, Severe, Recurrent
· Alcohol Use Disorder, Severe
· Stimulant Use Disorder, Cocaine
· Cannabis Use Disorder, Severe
· Posttraumatic Stress Disorder
· Attention Deficit and/or Hyperactivity Disorder,
33Ms Cameron opines in her report:
Mr Sutcliffe-Carey is a 20-year-old young man with a dysfunctional childhood characterised by his father’s infidelity, his parent’s public separation due to his father’s bisexuality, and disrupted parental attachments. As a result of his childhood instability, his emotional dysregulation led to externalising behaviours, his premature exit from school, affiliations with antisocial peers, early onset of substance use, and homelessness and transience. Mr Sutcliffe-Carey’s complex behavioural difficulties were partly attributable to his unstable and chaotic home environment, the bullying he received during his schooling, and his undiagnosed Attention Deficit and/or Hyperactivity Disorder (ADHD).
34When your plea hearing was conducted before me on 7 August 2023, both parties were of the view that given all the circumstances of your offending and matters personal to you, it would be appropriate to consider whether your rehabilitative prospects would be more likely to be promoted by you serving any further period of confinement by way of detention in a youth justice centre, as opposed to adult custody.
35In response to those submissions, I ordered that a pre-sentence report be provided to the court, addressing the relevant criteria for such a sentence,[2] namely whether:
(a) there are reasonable prospects for rehabilitation of a young offender; or
(b) the young offender is particularly impressionable, immature, or likely to be subject to undesirable influences in an adult prison.
[2] Prepared pursuant to s 32 of the Sentencing Act 1991 (Vic).
36I have now received that pre-sentence report. I will tender that report as Exhibit E on behalf of the prosecution. It is helpful and comprehensive in detailing relevant considerations. It is unnecessary for me to detail all the contents of that report save to say you have been found to fit the criterion (a) referred to above but not criterion (b). That is, you have been found suitable on the basis that there are reasonable prospect regarding your rehabilitation. The programs that might be offered under a youth parole order and confinement in a youth detention facility as opposed to adult gaol are in my view more likely to promote your prospects of rehabilitation. The prosecution conceded that this may be an appropriate disposition having regard to the recommendations in the pre-sentence report.
37It is of particular significance given you were assessed by Ms Cameron as being at high risk of reoffending. The pre-sentence report refers to you having completed programs in custody related to your offending and anger management problems. Some of the certificates relating to those programs have been tendered.[3] The writers of the pre- sentence report also indicate that while your insight into your offending is limited it has clearly improved since you were charged and:
‘It is proposed that through his participation in offence specific interventions that he has not previously accessed, that his current insight and victim awareness can be developed upon.’
[3] Exhibit 3.
Sentencing considerations
38I accept, that you have pleaded guilty at an early stage, and that fact must be recognised in mitigation of your sentence. I accept that your plea of guilty is indicative of some remorse, although this is to some extent limited in relation to your attitude towards Mr Lemmer. You are entitled to additional utilitarian benefit of your plea given it has been entered at a time when the COVID pandemic has caused a backlog in cases and made conditions of imprisonment more difficult. I also accept that your age and mental health problems need to be taken into account in tailoring a sentence that is most likely to promote your rehabilitation. It has not been submitted that the evidence relating to your mental health issues established a realistic connection with your offending. No doubt problems with alcohol and drugs need to be addressed by you if you are to get your life back on track.
39Mr Sutcliffe-Carey while your offending is very serious, you are still regarded in law as a youthful offender. However, you should appreciate that you only just come within that category, and you now have a considerable criminal history.
40Your counsel has referred me to cases that she submits are comparable in order for me to have regard to what the current sentencing practices are for this offence. Such cases are not precedents but may indicate a relevant ‘yardstick’ with which your case can be compared. I have had regard to those cases. They are in my view of limited assistance. There are relevant differences in both the circumstances of the offending and matters personal to the offenders in those cases that make them distinguishable from your circumstances.
41Although your offending relates to the one episode of criminality, the offence of aggravated burglary was complete upon your entry into the residence. The assaults upon Mr Lemmer and Ms Lamb while closely related in time and circumstance to your illegal entry are separate crimes and, in my view, warrant some degree of cumulation of sentence upon the charge of aggravated burglary. I must however bear in mind the principle of totality and consider the total sentence to be imposed upon you in relation to the all the circumstances of your crimes.
42The law recognises that if a sentence can assist a young person to rehabilitate themselves, that is ultimately in everyone’s interest and is the best way of enhancing protection of the community. You have been given some opportunities in the past to try and address the underlying issues related to your offending. Your prior history and the fact that you were not able to take advantage of the previous Community Corrections Order has some bearing on the sentence I impose upon you today. You do not get punished for past criminal offending, but your prospects of successful rehabilitation are more questionable.
43I really hope you appreciate that if you are not able to take advantage of programs designed to assist you, you are at risk of re-offending and serving longer periods of adult custody.
44Your offending must be denounced, and I must impose a sentence that is just in all the circumstances. I have concluded that only a sentence that involves your detention can serve the purposes of sentencing. However, balancing the various purposes of sentencing, involving both specific deterrence, general deterrence, and considerations of the need to promote your rehabilitation I have decided that the most appropriate sentence is as follows.
45On charge 1 of aggravated burglary, you are convicted and sentenced to be detained in a youth justice centre for a period of 15 months. This is the base sentence.
46On charge 2 of common assault of Ms Lamb you are convicted and sentenced to be detained in a youth justice centre for a period of 3 months. I order that 1 month of this sentence be served cumulatively upon the sentence imposed on charge 1 and all other sentences imposed this day.
47On charge 3 of common assault of Mr Lemmer you are convicted and sentenced to be detained in a youth justice centre for a period of 5 months. I order that 2 months of this sentence is to be served cumulatively upon the sentence imposed on charge 1 and all other sentences imposed this day.
48That makes a total effective sentence of 18 months detention. I declare pursuant to s 18(4) of the Sentencing Act 1991 (Vic) that the period of 279 Days that you have been in custody be reckoned as time already served under the sentence passed today, and I direct that this be entered into the records of the court.
49In respect of the uplifted summary offence of driving an unregistered vehicle you are convicted and discharged.
50In some respects, the declaration pursuant to s 6AAA of the Sentencing Act 1991 (Vic) is artificial in the sense that a trial in this matter would have been unlikely to have been conducted before you turned 21 years old. You would not therefore have been eligible to be sentenced to detention in a youth justice centre. In those circumstances I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 2 years and 10 months in custody.
51Can I just check with counsel, that the period of 279 days accords with their reckoning?
52MS DEARMAN: Yes, Your Honour, that's correct.
53HIS HONOUR: Thank you.
54MS SIRIWARDANA: Yes, Your Honour, I agree.
55HIS HONOUR: Is there any other orders that I need to make?
56MR DEARMAN: Nothing further, Your Honour.
57MS SIRIWARDANA: Nothing further, Your Honour. May I just have one moment to review s35 of the Sentencing Act 1991 (Vic). Your Honour, it's just ringing a small bell in my head about sentences of concurrency, sorry it's actually s33 of the Sentencing Act 1991 (Vic) with respect to youth.
58HIS HONOUR: Yes, they're deemed to be concurrent unless I order otherwise.
59MS SIRIWARDANA: Yes, Your Honour.
60HIS HONOUR: Is it not clear that by me declaring the period or cumulation that the other parts of the sentence are to be run concurrently?
61MS SIRIWARDANA: I think that does Your Honour, I just want to review that really very quickly, but I think that that is correct, Your Honour. I just wanted to make sure that - - -
62HIS HONOUR: Yes, sure, you can have a moment to have a look at it.
63MS SIRIWARDANA: Thank you, Your Honour.
64HIS HONOUR: But that's the way I read the Act.
65MS SIRIWARDANA: Yes, Your Honour. We have to reread it for a moment.
66HIS HONOUR: Yes. If it needs to be stated, I can state it now, but I have taken into account the presumption concurrency in relation to these types of order.
67MS SIRIWARDANA: Yes, Your Honour.
68HIS HONOUR: And I've tried to reflect that by ordering specific amounts of cumulation in relation to the charges.
69MS SIRIWARDANA: Thank you, Your Honour.
70HIS HONOUR: Can you unlink the accused please? I mean not unlink him, unmute him.
71Mr Sutcliffe-Carey, were you able to hear the sentence?
72OFFENDER: Yes, Your Honour.
73HIS HONOUR: And do you understand it?
74OFFENDER: Yes, Your Honour.
75HIS HONOUR: You would have picked up my comments. Look, you have obviously got some problems that you have to address, and I am hoping that the people who are going to be dealing with you in youth detention and will no doubt consider whether it's appropriate to grant you what's called youth parole, will have discussions with you about your arrangements in relation to where you live and the type of counselling to try and address your drug problems.
76I can only offer you a word of advice, and that is try and take everything they tell you into account and try to live by what they tell you, because it's no good for a young person like you to be back in custody. You need to try and address your anger management issues, and your drug problems, and hopefully you can get back to your hairdressing and find a job that you enjoy and start to build a proper life for yourself.
77OFFENDER: Thank you, Your Honour.
78HIS HONOUR: So, I can only wish you luck in that endeavour. All right, thank you, we'll - do you need to - do you need to speak with him?
79
Mr SIRIWARDANA: Your Honour, if there is capacity I'm happy with that,
Your Honour, otherwise I can organise a prison conference another day.
80HIS HONOUR: No, that's all right, I'll leave the link open for a moment and if you have any questions with your counsel, you can have a discussion.
81MR SIRIWARDANA: Thank you, Your Honour, I'm grateful.
82HIS HONOUR: And thank you both for your assistance. Thank you.
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