Director of Public Prosecutions v Twentyman
[2018] VCC 302
•16 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-17-01774
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES MICHAEL TWENTYMAN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 6 & 22 February and 9 March 2018 | |
DATE OF SENTENCE: | 16 March 2018 | |
CASE MAY BE CITED AS: | DPP v Twentyman | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 302 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Aggravated burglary – enter property with intent to steal – disparity in sentence with co-accused, McCarthy – Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Maguire | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Desmond | Papas & Co |
HER HONOUR:
1 James Michael Twentyman, you have pleaded guilty to one charge of aggravated burglary, in that on 31 January 2017, you entered as a trespasser Unit 1, 17 Aberdeen Street, Newtown with intention to steal and, at the time, knew your co-offender, Zachary McCarthy, had with him an offensive weapon, namely a knife.
2 Your co-accused, Zachary McCarthy, has pleaded guilty to an aggravated burglary charge in respect to the same incident. He was charged on the basis that he entered as a trespasser with intent to commit an offence involving an assault to a person and, at the time, he had with him an offensive weapon, namely a knife. He also pleaded guilty to a further related charge of recklessly causing serious injury.
3 On 22 February 2018, I sentenced Mr McCarthy to a term of four years’ imprisonment in respect of the charge of aggravated burglary, and five years’ imprisonment in respect to a related charge of recklessly causing serious injury. Following orders for cumulation, a total effective sentence of six years’ imprisonment was imposed with a non-parole period fixed of four years.
4
The sentence I am about to impose upon you is significantly different from
Mr McCarthy’s sentence because of the very substantial differences between your respective roles in the offending and your circumstances generally.
5 This matter has had a chequered history.
6 It was listed on short notice at the Geelong circuit of the County Court on 6 February 2018 for a plea hearing. Mr Maguire appeared to prosecute and Mr Vines appeared on behalf of Mr McCarthy, and Mr Desmond appeared on your behalf.
7 On that date, both you and Mr McCarthy were arraigned and pleas of guilty entered with respect to each of the charges on the indictment. Following the arraignment pleas in mitigation were conducted.
8 Your counsel, Mr Desmond had been retained by Papas & Co. He received his brief late on the preceding afternoon, which he described as being voluminous.
9 After your arrest for this offence, you were remanded from 1 February 2017 for 56 days. On 29 March 2017 you were released on Court Integrated Services Program (“CISP”) bail with stringent conditions.
10 Mr Desmond made submissions in mitigation on your behalf, on the basis that you successfully completed the 17 week program following your release from prison on CISP bail on 29 March 2017 you had excellent prospects of rehabilitation and that you had fully utilised all opportunities provided to you whilst on bail. He submitted therefore the court ought to consider the imposition of a Community Correction Order as the appropriate disposition.
11 Mr Maguire submitted that such an order was open but that it should be combined with a term of imprisonment greater than the period of 56 days already served.
12 Following the plea in mitigation, the prosecution appropriately informed the court, that you had matters pending that were listed in the Geelong Magistrates’ Court on 14 February 2018 in relation to three charges of theft, commit offence whilst on bail, and an affray charge. Summaries in relation to those charges were provided, together with screen dumps from the Magistrates’ Court Courtlink system confirming the charges filed against you.
13 It is intended that you will plead guilty to the three charges of theft, being theft of sunglasses on 12 November 2017, theft of items of clothing on 19 November 2017, and theft of alcohol on 19 November 2017. You were charged in respect to those offences on 1 December 2017 and released on bail.
14 Subsequently, you were charged with affray and commit indictable offence whilst on bail on 22 December 2017. Those charges are to be the subject of a contested mention, and it is anticipated that there will be a contested committal and possibly a trial. Mr Desmond indicated that it was intended to raise the defence of self-defence.
15 The matter was therefore brought back to Court for further submissions from the parties.
16 On 20 February 2018, Mr Desmond advised the court via email that he had read the transcripts of the proceedings and offered an unreserved apology in writing. He confirmed that he would do so to the court, the prosecution and, indeed, both accused and Mr Vines. He stated that he did not know of the pending matters, but fully accepted that he should have known, and that the fault rested entirely with himself.
17 On 9 March 2018, Mr Desmond appeared before the court and reiterated his unreserved apology and confirmed that it was his fault entirely that those matters were not disclosed to the court. He confirmed that the information was contained within the documentation within his voluminous brief and that he should have known about them and dealt with them on the previous occasion.
18 It is the duty of a defence lawyer upon a plea on sentence not knowingly to mislead the court.[1]
[1]Meek v Fleming [1961] 2 QB 366; Rondel v Worsley [1969] 1 AC 191, at pp 227-8.
19 I am satisfied that Mr Desmond did not knowingly mislead the court. What occurred was attributable to the circumstances in which the plea hearing was called on at short notice, together with the fact that he had a voluminous amount of material to be considered within a short timeframe.
20 It was an oversight on his behalf that is explicable in all the circumstances. Therefore, in the circumstances, I accept that Mr Desmond did not knowingly breach his duty to the court.
21 Nor do I consider that you have deliberately engaged in conduct that was intended to mislead the court. You are a young man who does not have much by way of formal education. You are entitled to rely upon the expertise of your solicitor who instructed experienced counsel to represent you at the plea hearing and present the plea on your behalf.
22 Mr Maguire provided to the court an unreported decision of the Court of Appeal, namely, Bellizia v R,[2] which dealt with the situation where the offender had outstanding subsequent offending which was unproven but admitted at the plea hearing, and that decision contains dicta that is of guidance insofar as this case is concerned.
[2][2016] VSCA 21.
23 Santamaria JA wrote the reasons for judgment with which Whelan JA agreed. His Honour Santamaria JA made it clear that great care must be taken in the use that may be made of subsequent charges, especially where those charges are to be contested.[3] No one may be punished in the absence of a conviction. He referred to the decision of Rumpf,[4] where McGarvie J spoke about the relevance of convictions for crimes committed subsequent to the offence for which the prisoner is sentenced. He said, and I quote:
“While the court has regard to the whole of the offenders’ antecedents in making decisions in respect of a minimum term, it is not entitled to use convictions occurring later than the relevant offence, for the purpose of increasing the length of the head sentence which would otherwise be imposed … while convictions later than the offence cannot be used positively to increase the head sentence which would, in the absence of consideration personal to the offender, otherwise be imposed, they may be used, in my opinion, to negate, reduce, or qualify an inference as to the offender’s later conduct which would otherwise arise and operate in mitigation of sentence. In this way they may prevent a reduction of the sentence which would be imposed in the absence of the mitigating inference.”[5]
[3]Ibid, paragraph [75].
[4][1988] Vic Rp 55; [1988] VR 466 (“Rumpf”).
[5]Rumpf [1988] VR 466, 475
24 Santamaria JA went on to say at paragraph [76]:
“So, if the use of subsequent convictions is limited, the use of subsequent charges must be similarly attenuated. Where the charges are to be contested, the fact of the charges themselves will usually be irrelevant. However, matters collateral to the charges – such as the location of an offender or the company he or she was keeping or the conduct he or she was engaging in – if admitted, may be of relevance.” (My italics)
25 In this case, the further offending (the affray and commit indictable offence whilst on bail) is not admitted. It is to be the subject of a contest and, therefore, I will not be using the fact of the laying of those charges to negate, reduce or qualify an inference as to your later conduct which would otherwise arise and operate in mitigation of sentence.
26 The fact that you have indicated that you will plead guilty to the three charges of theft that occurred whilst you were on bail for this offending is of some relevance in assessing your prospects of rehabilitation. This was fairly conceded by Mr Desmond in his oral submissions.
27 Ultimately, Mr Desmond submitted that you are a young man who, in the past, has shown immaturity and that you are well on your way to the maturation process, and that in considering the most appropriate sentence regard needs to be given to encouraging your further rehabilitation. His submission in relation to what is the most appropriate disposition remains the same.
28 Mr Maguire, on behalf of the Crown, sought to exhibit the CCTV footage of the alleged affray and sought to raise inferences in respect to the affray, having regard to the CCTV footage. As was discussed in the course of the plea hearing, I was not prepared to draw any adverse inferences against you on the basis of what was contained within the CCTV footage. The matter is to be the subject of a contested hearing and therefore, it is not appropriate for this court to consider that material. Mr Maguire subsequently withdrew the CCTV footage as an exhibit.
29 Mr Maguire also raised the issue of you failing to advise your counsel of the subsequent matters and not saying anything when the submissions were made to the court. Having regard to the particular circumstances and my earlier expressed views, I am not prepared to draw any adverse inferences against you in this regard.
30 I shall now proceed to sentence you on the basis of the one charge on the indictment of aggravated burglary.
31
The context to the offending was that Mr McCarthy had a grievance with
Robert Harrison about a car that he had sold to him. Mr Harrison, a mutual friend to you both, was then aged 19 and living at the unit in Newtown with his sister, Lauren Harrison, and Nathan Voyce. Both you and McCarthy were also friends of Lauren Harrison and Voyce.
32 Mr McCarthy was 25 at the time of the offending and you were aged 24.
33
In the afternoon and evening of Tuesday, 31 January 2017, you and
Mr McCarthy, in company with your respective girlfriends, had been drinking at Norlane and later in the Geelong CBD. You and McCarthy were both heavily intoxicated at the time of offending having consumed spirits and beer with some Serepax.
34 During the course of the evening you agreed with Mr McCarthy to go to the Newtown unit to retrieve the car keys from Mr Harrison. You left the Geelong CBD with your respective girlfriends, Taylor Blacker and Ebony Graham, and walked together to the unit.
35 Earlier in the day, Mr McCarthy had been playing with a knife that belonged to you, namely a small folding Gerbra knife. He had taken possession of the knife and had it on his person at the time of the commission of the aggravated burglary. You knew he had taken possession of the knife hours earlier in the day.
36 You reached the unit at about midnight. Both of you approached the front door and banged on the door of the unit. Lauren Harrison was present, alone and asleep in her upstairs bedroom. Robert Harrison and Nathan Voyce were out at a nearby supermarket.
37 Lauren Harrison was woken by the noise but ignored it. Your forced entry was gained by breaking the door frame on the rear backdoor.
38 You and McCarthy went upstairs to the bedroom area and, as you were climbing the stairs, you called out "Is anyone home?". Ms Harrison recognised your voice.
39
You then both entered Ms Harrison’s bedroom and turned on the light.
Ms Harrison saw you. You immediately turned and covered your face with a jumper. You then repeatedly said "Where’s the money?".
40 Ms Harrison got out of bed and pushed past the two of you into the hallway. As she neared the staircase, Mr McCarthy swore at her and kicked her in the back, causing her to fall partway down the stairs, before she caught herself.
41 She ran out of the front door. As she did, Robert Harrison and Nathan Voyce were present, having just returned from the supermarket. She yelled out to them.
42 You and Mr McCarthy then ran from the unit into the driveway. Whilst in the driveway, Mr McCarthy started fighting with Robert Harrison and Nathan Voyce. During the fight, Robert Harrison was stabbed once to the lower back region, causing his spleen to rupture. He suffered serious injury and was in a coma for several days. That constitutes the facts of Charge 2, recklessly cause serious injury (McCarthy).
43 Whilst Robert Harrison was lying on the ground, Mr McCarthy was insisting on having his keys back. Mr McCarthy then turned on, and started assaulting, Nathan Voyce. He pushed him up against a wall and held the knife to his throat. All the while, Mr Harrison was on the ground yelling "I’ve been stabbed".
44
You then placed yourself between Mr McCarthy and Nathan Voyce, and attempted to disarm Mr McCarthy. A fight ensued between you and Mr Voyce against Mr McCarthy. You managed to punch Mr McCarthy and disarm him. In the course of the scuffle, when you sought to intervene and disarm
Mr McCarthy, you suffered a defensive wound, namely a laceration to your left hand caused by the blade of the knife. Mr McCarthy punched you before walking away.
45 Police attended the scene and you were arrested. You were interviewed and admitted attending the premises with Mr McCarthy in order to retrieve a set of keys relating to the vehicle purchase. You admitted entering the unit and confronting Ms Harrison. You admitted assisting to restrain Mr McCarthy after Mr Harrison had been stabbed. You denied the requisite intention to perform an aggravated burglary with intention to steal. The prosecution relied on the circumstances, together with your plea of guilty, to demonstrate the requisite intention.
46 You will be sentenced on the basis that the prosecution accept that you entered with an intention to steal whilst being aware that McCarthy, whom you were entering with, was armed with a knife. The prosecution do not further allege that you also knew McCarthy had an intention to assault by use of that weapon. Upon entry you entered with the intent to steal. i.e. to retrieve the set of car keys from Robert Harrison.
47 You will be sentenced on the basis that you entered with intent to steal and not for assault on Lauren Harrison or for the subsequent assault on Robert Harrison with the knife.
48 Mr Twentyman, your offending is serious, involving, as it does, going in company and forcing entry into the unit in the early hours of the morning and confronting Ms Harrison whilst she was asleep in her bedroom in the circumstances that I have described.
49 In sentencing you, there is a need for the court to emphasise general and specific deterrence, to provide for the protection of the community, and to emphasise denunciation. On behalf of the community, I condemn your behaviour.
50 The impact of your offending has been great and I have had regard to the two Victim Impact Statements that were declared and filed with the court, one by Lauren Harrison and the other by Rachel Kirby (Robert Harrison’s mother).
51 Ms Harrison described her feelings of violation and ongoing difficulties with anxiety, depression and insecurity. She no longer feels safe in her own home and lives in constant fear. She has ongoing symptoms of Post-Traumatic Stress Disorder, including sleeplessness, rumination, nightmares, depression and anxiety. She is hypervigilant and reacts in an aroused way whenever anyone knocks on her door. The incident has affected her dramatically. She now hates how her life has become and how her trust of others has been broken.
52 Ms Rachel Kirby describes her depression and difficulties following the incident, and states that her life has changed forever through this one senseless act of violence.
53 I accept that there was a context to the offending and that you were heavily inebriated and under the influence of both alcohol and Serepax at the time of your offending. Whilst providing a context to the offending and explaining your lack of judgment in agreeing to accompany Mr McCarthy to forcibly enter the unit to retrieve the car keys, it in no way excuses your behaviour.
54 Your intoxication is not a mitigating circumstance. You broke into the unit in a manner which was aggressive, confronting, and most frightening for the victim. Your moral culpability is high and I consider that this is a serious example of aggravated burglary.
55 The sentence to be imposed must adequately reflect the condemnation by the court and the community of your appalling behaviour. It is equally important that the sentence must be of sufficient severity to serve as a lesson to others who might be minded to engage in the type of offending committed by you, and constitute a message to the community, that persons who engage in such conduct should expect stern punishment.
56 You have however made great strides in your efforts to address your underlying offending behaviour following your release upon credit bail. Specific deterrence is still a relevant consideration albeit appropriately modified.
57 I have had regard to your personal history and background. You are 24 years of age. You admitted a prior criminal record that is of little relevance in formulating the appropriate sentence having regard to the nature of the charges for which you have appeared before the courts in the past and the dispositions imposed.
58 There was one appearance in the Geelong Children’s Court on 25 November 2010 concerning criminal damage (graffiti), where you were placed on an adjourned undertaking which you complied with. The second appearance was at Geelong Magistrates’ Court on 29 September 2011 for criminal damage (graffiti) and drunk in a public place, for which you were without conviction fined $400 in respect to the criminal damage and the drunk in a public place charge was dismissed.
59 Of particular note, there are no prior criminal appearances in respect to crimes of violence against the person, aggravated burglary or burglary.
60 You were born and raised in the Geelong region and have always lived in the Geelong or Torquay area.
61 You are the only child born of your parents’ union. Your parents separated when you were six years of age. You were raised by your mother. Your father went to live in Western Australia, where he has re-partnered, and you have had little ongoing contact with him.
62 At the relatively young age of 17, you were left to fend for yourself in Victoria. Your mother went and lived in New South Wales, where she still resides. You chose to remain in Victoria, where you rented a home with your then girlfriend.
63
You completed Year 9 at Belmont High School and left partway through
Year 10. You completed a Certificate III in Logistics/Transport.
64 To your credit, you successfully completed a four year plastering apprenticeship and you have been gainfully employed as a qualified plasterer, and have been sub-contracted to a number of companies in the past.
65 You are currently employed by Frank Bisinella of F Bisinella Plasterers Pty Ltd as a team leader/truck driver. You commenced employment with that company when you were released from prison on the CISP bail program in April 2017 and have maintained that employment. You were initially employed as a jockey but, because you showed such promise, you were given the opportunity of obtaining your medium rigid truck licence that was funded by the company. You were successful in obtaining that licence. You then became responsible for managing a small team of workers, driving trucks, and delivering product throughout Victoria.
66 Frank Bisinella provided a written reference confirming your very positive attitude towards work and your success in his business.
67 In addition, Steve Vagies, manager of F Bisinella Plasterers Pty Ltd, gave oral evidence and provided two written references on your behalf. He considers you to be a valuable team member. He outlined that because of your success in your position, the company has made plans for you to replace him as manager of the whole company. He considers that you have made remarkable progress as both a worker and a person since you have taken up the opportunity of working with the company.
68 Mr Vagies was made aware of all the matters that are pending following the giving of his evidence. He states that those matters have not influenced his opinion of you in any way. He considers you to be a valuable, reliable and hardworking employee.
69 As part of your assessment for CISP bail, a history was taken concerning your drug and alcohol abuse issues. You have a long history of drug abuse. You reported using methamphetamines daily for the majority of 17 months prior to your arrest.
70 During the month prior to your remand you attempted to decrease your use of the drug. However, you subsequently commenced using more alcohol and also misusing Benzodiazepine, including your own prescription for Serepax.
71
You were diagnosed in June 2016 with major depression by Dr K H Loo.
Dr Loo referred you to a counsellor with the request that counselling and support be provided under a mental health plan.
72 The referral letter states that you had increased stress due to family issues, namely a lack of contact with your young son. You were suffering anxiety and problems sleeping, and you were prescribed Serepax. Your long-term history of drug and alcohol abuse was noted. Mention is also made concerning issues you were having concerning access to your son, Jakota.
73 Jakota is a child of a relationship that went well until 2011 at which time you separated from the child’s mother. Following separation, you enjoyed weekend contact. That ceased in early 2016 when, in the context of an attempted reconciliation, your former partner became aware of a subsequent relationship and that led to a total breakdown in the relationship with cessation of any further contact with your son.
74 From mid-2016 you were therefore experiencing problems with major depression, anxiety, increased drug use and alcohol abuse, and abuse of prescription drugs. The Department of Health and Human Services were also involved, in terms of your son’s living arrangements.
75
You utilised your time on remand well and detoxed. A urine sample dated
22 February 2018 records that the sample was negative for all substances. You also completed some programs on managing sleep and prison legal education.
76 When you were released on CISP bail you successfully completed alcohol and drug treatment with Ms Deb Wilkinson at Headspace. She dealt with your alcohol and drug problems and mental health problems. When you completed the CISP bail program, you continued to see Ms Wilkinson voluntarily.
77 The final progress CISP report confirms that you adhered to all the strict conditions of residency, non-association curfew and treatment directed at addressing your problems with alcohol, illicit drugs, prescription drugs and mental health.
78 On your behalf, Mr Desmond highlighted a number of matters in mitigation. I accept that the plea of guilty was entered at an early stage and is of real utility. By your plea, you have saved the State the cost and inconvenience of a trial and spared the witnesses, particularly Robert and Lauren Harrison, the further trauma of being cross-examined at committal or trial. You have facilitated justice and your sentence will be discounted accordingly.
79 I accept the plea is indicative of some remorse on your behalf and that you now have appropriate insight. Through your counsel you have offered an apology to the victim and the extended family members, as well as the community at large for your outrageous behaviour. Mrs Graham also acknowledged your remorse in her evidence.
80 You personally acknowledge that this is a serious example of this sort of serious offending.
81 I accept that your behaviour in general, following your release on the CISP bail program, has demonstrated that you are capable of change and have made real strides in addressing your offending behaviour, with the exception of the three theft charges.
82 Mr Desmond explained that these offences were committed in the context of your life being unsettled insofar as there was a dispute with you girlfriend’s father, David Graham, with whom you were living about your contributions to the household. Graham was not happy with how things were going.
83 You now enjoy a good relationship with Mr Graham with whom you continue to live.
84
David Graham, a self-employed landscaper, provided a written reference that confirms that you have been living with him and Ebony since being released on strict bail conditions. He notes significant changes in both your behaviour and attitude following your release on credit bail. He considers you to be
well-motivated and determined to achieve life goals, working towards gaining regular access to your son, and having a healthy attitude and lifestyle. He states you have been open to accepting any help and advice that he has offered in terms of seeking support and guidance to abstain from substance abuse.
85 Sharon Graham, Ebony’s mother, gave evidence at the plea hearing. She is a business owner. She has known you since early 2016 when you first formed your relationship with her daughter, Ebony. She considers that you are very respectful in your relationship with her daughter and members of her family. She is confident that such conduct will continue. She states that you are genuinely remorseful for your behaviour.
86 Through Mr Desmond, she has advised the court that she still holds great faith in you and is continuing to support you, notwithstanding the outstanding charges.
87 I have had regard to the other written references provided from Sean Fogarty and Kim Hollyoak, both drug and alcohol counsellors. Both of whom know you and have written about your desire to change and take responsibility for your life.
88 Ms Hollyoak has known you since 2002. You have provided assistance to her son who has an Acquired Brain Injury and chronic mental health issues. You assisted him with his activities for daily living when she has been unable to do so. At one time, you lived with them for about two months, providing her son with extra care. She states she was surprised to hear of the charge before the court and did not consider that it was consistent with her experience. She has never known you to have a violent nature.
89 Overall, I do consider that the offending was out of character. You are entitled to have your previous good character taken into account.
90 Mr Twentyman, in sentencing you I must impose just punishment. I consider that the charge of aggravated burglary is a serious example of this serious offence. You entered Ms Harrison’s property in the early hours of the morning in company with an intention to steal. You forced the backdoor to gain access to the unit. Ms Harrison was asleep in her bedroom and both you and Mr McCarthy went to her bedroom area when she was woken by your presence. She was made to feel fear in the safety of her own home where she was entitled to not be confronted in such a terrifying manner.
91 Your progress to date and other mitigating features that I have highlighted, in particular, the manner in which you have been able to deal with your long-term chronic drug abuse through appropriate counselling and treatment, as well as your progress whilst on credit bail, I consider that you do have reasonable prospects of rehabilitation.
92 The charges in relation to the thefts indicate that you do still experience a level of immaturity. You will need to continue to address your alcohol issue in order to make good your stated intention to lead a more law-abiding lifestyle.
93
Finally, I have had regard to the fact that when it became apparent that
Mr Harrison had been stabbed by Mr McCarthy, that you did position yourself to intervene to stop further serious violence being inflicted on Mr Nathan Voyce, during which you received the laceration to your left hand.
94 By your actions, you de-escalated the situation at great personal risk. I am satisfied that when you became aware of how far this matter had gotten out of control, notwithstanding your high level of intoxication, that you acted appropriately to stop Mr McCarthy from inflicting further harm. That reveals a level of maturity and capacity to act appropriately on your behalf, in contradistinction to your behaviour earlier that night.
95 Mr McCarthy was sentenced to four years’ jail in respect to the aggravated burglary charge. For the following reasons, I propose to impose on you a different disposition.
96 Mr McCarthy was charged with aggravated burglary on the basis that he entered the unit with the intention to assault, and at the time of entry he was armed with a knife. He also inflicted violence on Ms Harrison.
97 I am satisfied that he was the instigator of the plan to enter the premises to retrieve the keys to the vehicle. It was his grievance with Mr Harrison which prompted your behaviour.
98 Your charge is different, that is entering the property with intent to steal. Your role in the aggravated burglary was a lesser one. You were not responsible for the infliction of any violence within the unit.
99 Mr McCarthy has a longer and more relevant criminal history, including a court appearance for recklessly causing serious injury (2012), for which he received six months’ detention in a Youth Training Centre for offending involving the infliction of an injury in not dissimilar circumstances. He also had appearances in the Geelong Children’s Court in 2008 and 2009 for burglary charges. On the first occasion without conviction, his matter was adjourned for a period of 12 months. On the second occasion without conviction, he was placed on probation for 12 months.
100 You are entitled to rely on your previous good behaviour. You have no relevant prior criminal history.
101 You are currently in full-time paid employment with excellent prospects for the future in terms of advancement. You completed successfully the CISP program. You have made real efforts to address all your relevant offending behaviours. Overall, I consider that, on the basis that you remain abstinent from abusing drugs, both illicit and prescribed, and alcohol, there is a lower risk of re-offending.
102 For the future you do need to make a real commitment to maintaining your abstinence and to acknowledge that the triggers for your offending were the abuse of prescription drugs together with heavy alcohol intake.
103 In terms of disposition, Mr Desmond submitted that your general progress following your release on CISP bail and your circumstances, means that no further time ought be served in custody and that a Community Correction Order is appropriate punishment. He referred the court to the guideline judgment in Boulton.[6]
[6][2014] VSCA 342.
104 Mr Maguire, on behalf of the Crown, acknowledged the very serious nature of your offending and submitted that there was much to be said in your favour notwithstanding this offending is a very serious offence.
105 He submitted that although the court would be entitled to consider a Community Correction Order disposition, that it should be coupled with a period of imprisonment, and that effectively you should be required to serve a further period of imprisonment.
106 Mr Maguire referred the court to the decision of DPP v Meyers,[7] where the court identified the considerations that ordinarily were relevant in assessing the seriousness of an instance of aggravated burglary.
[7](2014) 44 VR 486.
107 He referred the court to the principles set out in the Court of Appeal decisions of R v Hogarth,[8] Hi v R[9] and Karoumi v R.[10]
[8][2012] VSCA 302.
[9][2017] VSCA 315.
[10][2017] VSCA 375.
108 I have taken into account the considerations set out in Meyers. Importantly, the court highlighted that the particular purpose which the offender has in mind at the point of entry is a significant feature going to the gravity of the offence.
109 I have had regard to those features when assessing the objective seriousness of the offending. At the point of entry your intention was to steal and not to assault. Mr McCarthy was the instigator. It was his grievance that led to the aggravated burglary.
110
Your offending is serious and represents offending at the lower end of
mid-range of seriousness for this type of offence.
111 There was a particular context to the offending, insofar as you had been drinking heavily and had taken drugs, and agreed to take place in the aggravated burglary.
112 It was recognised by the Court of Appeal in the guideline judgment of Boulton, that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a median term of imprisonment, and the Court specifically referenced as an example, aggravated burglary. The Court stated that the sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects for rehabilitation.[11]
[11]Boulton v R; Clements v R; Fitzgerald v R [2014] VSCA 342 at [131]
113 Further, I must have regard to s.5(4C) of the Sentencing Act. It places an obligation on a sentencing judge not to impose a sentence that involves confinement, unless the purpose or purposes for which the sentence is imposed cannot be achieved by a Community Correction Order.
114
Overall, I have had regard to the significant efforts that you have made insofar as addressing your underlying behaviours following this offending and regard you as having sound prospects of rehabilitation, with a reduced likelihood of
re-engaging in further serious offending.
115 As was stated in Boulton, axiomatically, prison is a sentence of last resort. As s.5(4) of the Sentencing Act makes clear, such a sentence must not be imposed unless the court considers:
“That the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.”
116 You have been assessed as to your suitability for a Community Correction Order. You have been assessed as being of medium risk of re-offending according to the level of service risk assessment tool. You are assessed as suitable with the conditions of community work and treatment and rehabilitation programs for drug, alcohol and offending behaviour, together with supervision. You have consented to such an order being made.
117 Ultimately, I have concluded that a properly conditioned CCO combined with a gaol term of 56 days being the time already served is appropriate punishment.
118 The terms of the CCO are tailored to your particular circumstances and the causes of the offending. Having regard to your significant progress whilst on credit bail, your current full-time employment with the possibility of advancement to managerial level, your stable residence and expressions of remorse and appropriately expressed attitude towards this offending, all combine to demonstrate positive progress notwithstanding the pending charges.
119 To return you to prison after almost 12 months has elapsed would be extremely disruptive to your current progress and to the continuation of your rehabilitation in the community.
120
The remarks of the President of the Court of Appeal in the case of
DPP v Tokava,[12]are apt where he says:
[12][2006] VSCA 156, [21]
“A sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course. This Court should seek to promote public understanding of the fact that – apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself – there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.”
121 Accordingly, I consider that no further term of imprisonment ought be served.
122 The formal orders of the Court are:
123
In respect to Charge 3, aggravated burglary, you will be convicted and sentenced to 56 days’ imprisonment, which is the equivalent of the time already served, to be followed by a Community Correction Order of three years’ duration with supervision and the following special conditions: that you perform
200 hours of community work. Also, that you be ordered to undertake treatment and rehabilitation for drug abuse and dependency, alcohol abuse dependency, and offence behaviour programs. There will be a recommendation that hours undertaken for treatment and rehabilitation be credited towards the community work condition. Do you understand that?
124 OFFENDER: Yes, Your Honour.
125 HER HONOUR: Prior to the imposition of such an order, you must consent to the order being made. If you were to contravene such an order, that would be a fresh offence and you would be charged. The maximum penalty that is prescribed in respect to such contravention is three months’ imprisonment. You will further fall to be re-sentenced in respect to this offence and any other offending.
126 The focus of the conditions attached to the Community Correction Order are to punish you for the offending and to minimise the risk of re-offending by ensuring that appropriate treatment to address the causes of your offending so as to provide the best protection for the community for the future and to specifically deter you from further offending. Notwithstanding the serious nature of your conduct, I consider that such an order is appropriate and is just punishment. This will enable your rehabilitation to continue to progress in a community setting.
127 I make the following declaration pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to three years’ imprisonment to serve 15 months.
128 I make the following declaration of pre-sentence detention. I declare that you have served 56 days of pre-sentence detention and direct that that be entered into the records of the court.
129 I make the disposal order sought.
130 MR MAGUIRE: As Your Honour pleases.
131 HER HONOUR: All right. So that order will now be prepared. Once it is prepared, I will sign it, and I will ask that Mr Desmond explain it again to you. I will get you to sign the order, and then once that is completed, a copy will be provided to you, and you will be free to go. So just take a seat.
132 MR MAGUIRE: May I be excused, Your Honour?
133 HER HONOUR: Yes certainly, Mr Maguire. I did indicate to Judge Wilmoth I would probably have you until 11:00 am.
134 MR MAGUIRE: Thank you, Your Honour.
135
HER HONOUR: So almost on time. Thank you. All right, so that order has been signed. Could you just go through that please with your client,
Mr Desmond, and get him to sign it if that is suitable.
136 MR DESMOND: Yes, Your Honour.
137 HER HONOUR: Thank you. A copy will be made and provided to you and your client, Mr Desmond. Thank you for coming today.
138 MR DESMOND: Thank you, Your Honour.
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