Director of Public Prosecutions v Taylor

[2018] VCC 779

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00021
CR-18-00408

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANCE TAYLOR
BRAD TAYLOR

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 May 2018
CASE MAY BE CITED AS:	DPP v Taylor & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 779

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Fernando
For Accused Chance Taylor	Ms H. Canham
For Accused Brad Taylor	Ms A. Halphen

HIS HONOUR:

1Brad Taylor and Chance Taylor, you each pleaded guilty to an indictment containing two charges, one of home invasion, which carries a maximum sentence of 25 years' imprisonment and theft, which carries a maximum sentence of ten years' imprisonment.  At the time that you committed these offences, you were 51 and 23 years old, respectively.  You are now a year older. 

2The victim in this matter is Mr Morahan, who lived with David Foster in a self-contained apartment on Canterbury Road, Bayswater North. 

3You, Chance Taylor, were friends with David Foster and you had previously lived in the same apartment with him for a short period in June 2017.  You had met Mr Morahan through your associations with Mr Foster.  You, Brad Taylor, had never met Mr Morahan before.

4The circumstances of your offending are set out in the detailed prosecution opening dated 9 April 2018, a copy of which was tendered and exhibited on the plea hearing.  I will not recite the detailed circumstances of your offending.  It is sufficient for present purposes to provide only a brief outline as follows. 

5On 24 July 2017 at approximately 5.45 pm, Mr Morahan was alone in the apartment when he heard a knock at the door.  He answered it to find both of you standing outside.  You, Chance Taylor, immediately asked for Mr Foster. He responded that he was not home and did not know where he was.  Brad Taylor then stepped forward towards Mr Morahan in an aggressive manner and asked, "Where is David?  I want to know right now.  Call him right now.  David got a fine in Chance's car." 

6Mr Morahan again explained that he did not know where Mr Foster was, before you produced a wooden baton, pushed him in the stomach with it, which forced him backwards inside the apartment.  You each then followed him inside without his permission.  This constitutes the charge of home invasion.

7Brad Taylor, you then demanded Mr Moran provide you Mr Foster's mobile phone number.  You moved towards him aggressively, held the baton to his face and said, "If you don't tell me, I'm going to give you a beating."  Chance Taylor, you spoke to Brad and calmed him down somewhat.  Brad Taylor, you then turned to Mr Morahan and said, "How about I take your stuff then?" 
Mr Morahan objected, to which you responded, "I can take everything, your TV, your DVD player, whatever I want." 

8Morahan then called Foster's father, Clive Foster, who was also the landlord of the property and explained to him the situation, that you both forced your way in to the apartment looking for David, that he owed you some money and asked for David's mobile phone number and he added that "They're armed and I'm about to get my head kicked in."  Mr Foster did not have David's mobile phone number but stated that he would call the police. 

9While this exchange was taking place you, Chance Taylor, were heard to mumble, "We're not going to kick your head in", to which you, Brad Taylor, leaned in towards Morahan whilst he was on the phone and said, "Yes, we are."  You then picked up a bundle of DVDs and Blu-ray discs that were stacked on the floor and told Morahan, "I'm gonna take these.  I'll give them back when you get David to call me.  I can take everything.  I'm going to keep coming back every day and take something else until David contacts me."  This constitutes the charge of theft.

10Mr Morahan objected to this, to which you stated, "Get David to call me and I'll give them back to you."  You then gave Morahan your mobile phone number before you both left the apartment. 

11The following day, Morahan received a text message from Mr Foster.  He had said that he had spoken to you, Chance Taylor, and arranged for the fine to be signed over to his name.  He had also stated that the stolen DVDs had been returned.  When Morahan returned home to the apartment that evening,
Mr Foster returned the DVDs.  Mr Morahan then went to the Croydon police station to report the incident and on 26 July you, Brad Taylor, were arrested and interviewed at Boronia police station. 

12During that interview, you claimed that there was a misunderstanding regarding Mr Morahan's interpretation of events.  You admitted that you had attended the property to discuss the speeding ticket and that you had entered the apartment.  You denied threatening him or having brandished a weapon.  You stated, "Things may have got a bit heated but it wasn't involving any form of weapon or anything, it was a discussion.  I'm not saying that he wasn't intimidated by the way I spoke to him.  Maybe I was aggressive in tone.  I didn't touch him, he wasn't hurt.  I didn't damage anything.  I probably was threatening and all the rest of it but, you know, it' not like what he said but whatever."

13Following the interview, you attended with police at the property for the purpose of a warrant, however the wooden baton not located.  Chance Taylor, you were present at his address at the time and you were immediately arrested and transported to Ringwood, where you alter made a "no comment" record of interview. 

14A victim impact statement of Jason Morahan was tendered.  In that document, the victim describes his hyper-vigilance and watchfulness he experiences as a result of your aggression on this night, which has forced him to relocate.  This heightened state of fear and alarm is stressful and he rightly reflects on the nature of such vigilante-like conduct which you engaged in. 

15I take your statement into account.  There can be no doubt that such behaviour must be denounced by the court.  The rule of law means that those who are minded to resolve their petty disputes and disagreements by recourse to subjective personalised ideas of justice or retribution carried out by acts of aggression, threats of force and instances of actual violence must be deterred and punished. 

16Such conduct is utterly unacceptable.  It causes consternation and fear in the community, particularly when the offending encompasses a home invasion, which is a fundamental violation of the place where a citizen is entitled to feel secure and safe.

17Therefore, this is objectively serious offending.  I should note for absolutely clarity that the victim makes a number of allusions to other later home invasions which may contain some inference about the participations of the persons before me in that activity.  I draw no such inference and my sentence is narrowly and strictly directed to the indictment before me.  It would be inappropriate for me to have that matter play any part in the proper exercise of the sentencing discretion in this case. 

18The seriousness of the offence is confirmed by some objective factors, the use of a weapon, the level of premeditation required to bring such a weapon to achieve the objects of the invasion, the coercive and confrontational nature of that invasion once in the house with a victim who was not even a party to the dispute. 

19In the context of this assessment, it should be noted that there were no injuries or physical trauma inflicted on the victim, and counter-balancing the physical presence, Chance Taylor seemed to want to minimise the aggression. However you were overridden in your feeble attempt by your father's impetus to extract something out of the situation by hook or by crook in an effort apparently to keep you out of trouble, to assist you at a difficult time, at least in his own mind. 

20I take into account your pleas of guilty, which are entered in your case, Chance Taylor, at committal case conference, which I consider is the first reasonable opportunity for such a plea.  An appropriate discount will be applied to reflect this choice that you made. 

21The same case conference for you Brad Taylor was listed for a contested hearing and it was only at that date of the hearing in February of this year that your matter resolved to a plea.  Your discount will be slightly less.  Nevertheless, pleas of guilty facilitate the course of justice and have a utilitarian value.  No witnesses were required in either case for cross-examination. 

22The issue of remorse is more difficult to assess.  The circumstances of the offending and the behaviour of that instance and then in court tends to the view that you, Chance Taylor, are remorseful and regret these events.  That level of satisfaction, I do not have in relation to you, Brad Taylor.  In my view, you view this as an inconvenient and spontaneous action which has, unfortunately, blown up in your face with serious consequences, with the victim making a mountain out of a molehill, using your own expression, as you told the police.  You are wrong.

23I take your personal circumstances into account. You each have a criminal history.  You, Brad Taylor, is much more limited to a dishonesty offence in 2017 and a relevant reckless cause injury in 2014 when you were placed on an adjourned undertaking for 12 months without conviction and ordered to pay $900 to the court fund, that arising out of a road rage incident where you once again overreacted.  You also have a subsequent possession of amphetamine, a pending matter. 

24Chance Taylor, you have a more extensive prior history going back to the Children's Court in 2010, where  there are numerous driving offences, damage property, assault police, until 2014 when you were ordered to serve four months in YTC for assault, recklessly cause serious injury, possession of a weapon and dangerous article in public, thefts, and driving offences.  Then in April 2015, you were convicted and placed on a community corrections order with 150 hours community work conditions for charges of robbery, drive in a dangerous matter, other driving offences, theft, and assault. 

25In both cases, your priors appear relevant and consist of priors which indicate your repeated conduct which resorts to violence, aggression and dishonesty, which you used on this occasion.  Given this history in both of your cases, I consider that the prospects of rehabilitation must be guarded.

26You, Brad Taylor, for a man in your fifties to be behaving in this way is quite disconcerting. 

27You, Chance Taylor, for a young man who was given a chance in 2015 to follow some rehabilitative pathway, shows that so far you have managed little self-control or real intent to lead a lawful life, demonstrated by your failure to abide by the CCO and abstain from drug use. 

28You, Brad Taylor, have not spent time in custody by way of pre-sentence detention except since the plea. 

29You, Chance Taylor, was remanded in custody on 5 October 2017, a period not reckoned as pre-sentence detention, but which I consider relevant in terms of principles of totality and parsimony. 

30Brad Taylor, you are now 52 years old.  You left school at 15.  You have been married twice and have nine children and 12 grandchildren.  Your youngest are Chance his twin brother.  You have been employed throughout your adulthood as a printer with two employers.  That last employment ceased some 18 months ago when a four and a half year relationship broke up.  You contracted a blood infection in these circumstances, apparently brought about a serious decline in your life, with drug use, financial stress and unstable accommodation.

31I note your offending was accompanied by lack of disguise or attempts to hide your identity and a full disclosure as to your detail, including your phone number for purposes of future contact.  You returned the stolen property reasonably promptly.  You were affected by alcohol at the time and had used methamphetamine following the breakdown of your relationship. 

32A neuropsychological report found you with an IQ score to be 84, with low-average range of verbal abilities and executive functioning.  Currently, you are again employed with stable accommodation.  I have read the neuropsychological report provided; you do not have an acquired brain injury, have a mild alcohol related impairment, which will continue to get worse if you keep drinking at the current levels. 

33However, the cognitive issues identified are broadly commensurate with age expectations.  None of these matters impact on your offending.  I also received some reference which I take into account from Mr Hunt, your neighbour, who says you are polite and well-mannered, from Ms Davies, who speaks of your generosity and friendship, and from Ms Oxblade, another friend who speaks of you as kind and generous and helpful. 

34The director of Time Solutions, Buddy Tuwafaki, gave you a part-time job when you were experiencing some difficulties and knows about the charges and is supportive of your efforts to move forward in your life and I take his reference into account. 

35I am cognisant, having had received authorities which pertain to aggravated burglary and pronouncements which are referred to in the plea as the comparison.  I do not consider that post-Hogarth, sentencing standards meant that a range of penalty available to me is limited only to imprisonment.  But it seems to me, in evaluating the appropriate reposes of the court to this level of criminality, that although this is towards the lower end of home invasion without many aggravating features often seen by the court, punishment must be exacted to reflect the offence and this, in my view, is probably dealt with by imprisonment on a combination of imprisonment and community based orders as encompassed by the principles in Boulton and explanatory cases thereafter. 

36I had you assessed for a community corrections order.  The assessment found you suitable for such a disposition.  You are, I agree with the assessment, of medium risk of reoffending, so that supervision and treatment and rehabilitation for drug use and programs to reduce reoffending are indicated. 

37It is clear that when you are angry or frustrated, together with the negative impact of drugs, you have difficult in controlling your behaviour.  The sentence is designed to deter you from such impulsive behaviour.  The appropriate programs may be able to assist you to understand and change this. 

38You indicated that you intend to relocate to Wallan to secure employment and in an attempt to dissociate yourself from negative associations.  You will be able, when you are released, to report to Seymour Community Correctional Services. 

39On the two charges which you face, Brad Taylor, you are convicted and you are sentenced to two months' imprisonment and to then serve a community corrections order for 18 months, to be supervised and undertake programs I have indicated.  You will be of good behaviour during the course of the order.  If you commit an offence or breach the order by not attending at appointments, treatment or assessment opportunity or contravene the commitment required of the order, you will be brought back before and I will impose a penalty for the breach of the order and resentence you on the home invasion and theft in that instance, in all likelihood, a higher gaol term. 

40The correctional services are able to assist you in a number of ways.  If you breach this order, it will be a demonstration that you are not really serious and committed to reform yourself and have a better life and you will soon find yourself back before the court. 

41A pending matter at the time of the plea, and to be dealt with in late May, concerned the possession of a silencer and capsicum spray, which is of some serious concern.  Was that a matter that was dealt with recently?  Do either of you know anything about that?

42MS HALPHEN:  Yes

43MR BRAD TAYLOR:   It was struck out.

44HIS HONOUR:  Thank you.  Overall, if you are attempting to be a role model for your son at the time when your son was experiencing some stress, you failed in that endeavour.  Instead of providing him with a good example and sensible advice, you decided you would model the behaviour of a thug for your son.  It was not a good idea.  Thank you, you can take a seat.

45Chance Taylor, your priors reflect your background and your childhood.  The CCO which was imposed in 2015 was breached by you.  That order was a sentence in relation to offending committed before you were detained at Malmsbury and you were involved in a fight with a friend whilst under the influence of methamphetamine.  These charges represent further offending in breach of the order.  You have been on remand since October 2017 when your bail was breached in relation to the present charges. 

46You parents came from New Zealand when you were 20 months old.  At the time of the offence, you were living with a girlfriend in accommodation provided by United in Heathmont.  Prior to this, you had been often homeless.  You have been in a relationship for three years and have two children.  They have visited you in prison but your partner suffers from anxiety and panic attacks.  Your youngest has been diagnosed with a chronic lung disease following complications at birth.  You are currently un-medicated and employed as unit billet.  You have completed courses on drug and alcohol abuse as well. 

47Your father separated from your mother when you were aged three or four.  In describing your father, you told Mr Cummins, a psychologist, that he was with the Rebels Motorcycle Gang over nearly a decade and you preferred to have evaded all contact with him.  "He was mentally and physically abusive to me", you told Mr Cummins.  You had not seen him for four years and, just before this incident, you gave him a place to stay but you said he went right overboard on that 24 July.

48Your mother is 43 or so years and is an ex-heroin user.  You found her at an outreach program for abused women who had been drug dependent, which you have limited contact with her. 

49From age 24, you have lived independently of your parents and have often been homeless.  You are relatively estranged from your siblings.  After leaving school, you went to work in the glazing industry but had started to consume alcohol to excess.  You are said to want to work. 

50In 2014, both at Malmsbury and at home with your mother, thereafter, you were taking Seroquel and Epilim, mood stabilisers.  But alcohol and steroids soon impacted on your life.  You told Mr Cummins it was your father who introduced you to methamphetamine, alcohol and ecstasy.  Your young years were clearly in a dysfunctional family. 

51I accept that when you went to Mr Foster’s place, you told your father to back off and leave Mr Morahan alone.  You were caught in the dilemma of your father's bad and shameful behaviour and his efforts to apparently help you at a time that you had financial issues and there were problems with the pregnancy and potentially with the baby.  Mr Cummins thought that you were remorseful and accepting responsibility for this behaviour. 

52In April of this year you were quite optimistic about your commitment to remain drug free.  He diagnosed an adjustment disorder with mixed disturbance of emotions and conduct.  He thought you were a moderate risk for violence and it is imperative that you complete an anger management program.  It is clear you have no mental health issues, though post-traumatic stress disorder is a possibility.  You have the support of Olivia, your partner.

53On 11 April, you were sentenced at Ringwood to 15 months with a non-parole period of eight months.  Your parole entitlement starts on 1 June 2018.  In my view, this - from your point of view, was an offence at the lower end of the spectrum.  I also accept that the state of your unborn child at the time may have impacted on your decision making.  It was accepted in your plea, appropriately, that a sentence of imprisonment resulting in a moderate or modest increase in the length of the parole sentence no undertaken is an appropriate disposition. 

54You have to understand that this is so only by reason of your prior history, which is going to follow you around for the rest of your life, unfortunately.  I take into account a number of reference tendered on your behalf.  One was a letter from you youth worker at Uniting Harrison Victoria, John Billiet, who writes on the background of your intention to remain drug free and return to work. 

55I also read letters from the coordinator at YSAS where you lived in 2014.  I read a letter from Tim Aldridge, who writes that you appear to have taken responsibility for yourself and your actions, staying away from the wrong crowd. 

56Natasha McKay also wrote a letter to the court, as did your partner Oliva.  I take them into consideration, as speaking of your difficulties in the past at the time of the offence and your hopes for the future.  I do not want to interfere with those hopes for the future, I consider that an appropriate response, is a short increased in the term which seems to me adequate enough for the offence in question here.  I propose to only add to your non-parole period by two months in order to not delay and jeopardise your rehabilitation efforts.  You appear to want to get better. 

57On the home invasion and theft, you are convicted and sentenced to six months' imprisonment.  I order that two months be cumulative on the sentence you are currently undergoing, making a new non-parole period of ten months, being two months beyond 6 June.  The date for eligibility to parole, which I am hoping that you will get.  If you want to change your life around and be there for your children, I think you can and I think you can leave things in the past behind.  I hope that happens.  But for your plea, I would have sentenced you to nine months' imprisonment. 

58Brad Taylor, but for your plea, I would have sentenced you to nine months' imprisonment followed by a CCO.  Now, were there other orders that were required in this matter, ancillary orders such as ‑ ‑ ‑

59MS FERNANDO:  There was a forensic sample order for Brad Taylor, Your Honour.

60HIS HONOUR:  Yes.  Brad Taylor, in relation to you, I have ordered that a forensic procedure take place in accordance with the Crimes Act, that is the taking of a scraping from the mouth.  It is not a painful procedure.  If at the time that a request is made for that taking you do not consent, then the authorised member of the police force can take blood sample from you using reasonable force; do you understand?  Thank you.  Ms Halphen, would you take this CCO form over to your client?

61MS HALPHEN:  Thank you, Your Honour.

62HIS HONOUR:  Ms Canham, do you know whether your client has any pending matters?

63MS CANHAM:  No pending matters, Your Honour.

64HIS HONOUR:  I just want to say it again.  You are at an age where you can end up keep going through that door again and again or you can go out that other door with your partner and your children, it is really a matter for you.  You do not have to be continuously shackled to the problems of your past.  You are adult enough to be able to get on with your life.  I hope you understand that and make choices that put that in action because you do not have to keep repeating the same mistake and everybody else's mistakes too.  Do you understand what I am saying.

65MR CHANCE TAYLOR:  Yes.

66HIS HONOUR:  Thank you.

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