Director of Public Prosecutions v Unwin

[2021] VCC 1621

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01006

DIRECTOR OF PUBLIC PROSECUTIONS

V

GEORDIE UNWIN

---

JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2021
DATE OF SENTENCE:	22 October 2021
CASE MAY BE CITED AS:	DPP v Unwin
MEDIUM NEUTRAL CITATION:	[2021] VCC 1621

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Aggravated burglary – Young offender – No criminal history – Good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Sentencing Act 1991 s 5.

Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen [2014] VSCA 342; Bradshaw v The Queen [2017] VSCA 273; DPP v Ghazi [2015] VSCA 188; R v Mills [1998] 4 VR 235; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Community Corrections Order for a period of 18 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr L. McAuliffe	Office of Public Prosecutions
For the Accused	Mr T. Edwards	Stary Norton Halphen

HER HONOUR:

1Geordie Unwin, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment. 

Circumstances of the offending

2The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 28 September 2021, marked as Exhibit A on the plea.  I will not repeat the full summary here.   

3In brief, at approximately 11.30 pm on 21 September 2020 you, along with your co-offender Paul Potter, together with Zoey Robertson, went to a house at George Street, Colac.  The victim, Samantha Rochford, was present at the house.  She was assisting her friend Ms Wira in moving, though Ms Wira was not at home at the time of the offence.  At 11.20 pm Ms Rochford called Ms Wira telling her that someone was trying to break into the house.  Ms Wira called 000 for help.  At 11.30 pm, Ms Rochford heard a few bangs coming from the front door.  Upon approaching she saw that the door had been broken open and the lock and frame were damaged.  She saw you running into the house carrying a blue crowbar.  Having met you before, she recognised you.  Your co-accused Potter entered after you and Ms Rochford did not know or recognise him. 

4You were acting aggressively and shouting things like ‘where’s Murph,’ which was a reference to Cody Murphy, a friend of Ms Rochford’s.  You were holding the blue crowbar and acting very erratic.  Ms Rochford was terrified.  You told her you wanted to speak to Ms Wira, so Ms Rochford called her.  You also said to Ms Rochford that you wanted to know the details of the CCTV and you told Ms Wira over the phone to delete any footage.  While this was occurring, Potter was searching through the house taking things. 

5Around this time, you noticed that the police had arrived and you put the crowbar down near the front door and you and Potter ran off.  The police saw a blue VT Commodore in the driveway with Ms Robertson in it.  Police then saw and pursued Potter.  They noticed you at the time hiding in a hollow near the train line but you ran off while they were arresting Potter.   

6Ms Robertson was not arrested or charged for the offending but she participated in interviews with the police and the details of her comments are outlined at paragraph [13] of the prosecution opening. 

7The prosecution case against you is put on the basis that you trespassed into the house with an intent to commit an offence involving an assault to a person and at the time had with you an offensive weapon, namely a blue crowbar.  The case against your co-offender, Potter, was put on the basis that he entered with an intent to steal and that a person was present at the time. 

Arrest and procedural history

8On 24 September 2020 you voluntarily attended at the Colac Police Station and met with Detective Leading Senior Constable Stuart Sims. He arrested you and conducted a record of interview. You mostly answered ‘no comment’ to the questions but you agreed that you went to the house on 21 September 2020 and that there was ‘bad blood’ between you and Cody Murphy.  You were then released on bail, with various conditions.  

9You have remained on bail since the date of your arrest and you have not been involved in any further criminal offending. 

Nature and gravity of the offending

10The charge of aggravated burglary is a serious criminal offence, which is reflected in the maximum penalty of 25 years' imprisonment. However, aggravated burglary offences are committed in a wide range of circumstances.

11After assessing all the relevant circumstances in your case, I regard your offending to fall within the lower mid-range of seriousness for offending of this type.  While it is not the most serious example, it is also not at the lowest end. I accept the submissions of your Counsel that there are a number of factors reducing the seriousness of the offending: Ms Rochford was not physically injured; you didn’t make any threats towards her with the crowbar; your identity was not concealed in any way; the incident occurred within a matter of minutes; it was not a sophisticated or prolonged ordeal and you were not someone of whom she was particularly frightened of.  I note that in her statement to the police she stated ‘Geordie was so erratic, I don’t think he wanted to hurt me though’.

12There are however other factors that are relevant to the assessment of the gravity of your offending.  You forced your way into the home at approximately 11.30 at night.  It was your intention to assault a person you believed would be present at that address.  Apparently your ill-conceived purpose in attending the Colac house was to confront Cody Murphy whom you had been told had slept with Ms Robertson when you were seeing her.  You were in the company of a co-accused and even if his intention was not to assist you in the confrontation, his presence is a relevant and compounding factor.  You were also armed with a weapon.  While I accept that a crowbar is not as inherently dangerous as a knife or firearm, the possession of a weapon does increase the objective seriousness of your offending.  

13Mr Unwin, while there is no excuse for your offending I do accept that at the age of 23 you would have lacked the same degree of insight and judgment possessed by a more mature adult which, to an extent, reduces your culpability.

14On your behalf, Mr Edwards submitted that at the time of the offending there were a combination of relevant factors weighing heavily on you. You were using ice (having relapsed) and you were experiencing greater isolation. You were unemployed and physical contact with your young children, who reside in Sale, had stopped because of COVID related restrictions. You were also dealing with the ongoing instability, confusion and emotional turmoil arising from the challenging relationship with your father.  I accept that at the time of the offending you were struggling in your circumstances and grappling with deteriorating mental health. 

Victim Impact

15I have not received a victim impact statement from Ms Rochford. I am told that she was given an opportunity to make a statement but has declined.  In her statement to the police she refers to being terrified throughout the incident.  Given this statement and the circumstances of your offending, I accept that this incident would have been confronting and terrifying for Ms Rochford and I take this into account in sentencing you.   

Plea of guilty and remorse

16You indicated that you would plead guilty at a committal mention on 7 May 2021, which was the earliest practicable opportunity.  This is significant and counts in your favour.

17Your plea is particularly valuable in circumstances where there is a large backlog of cases in the court.  I recognise the utilitarian benefit of your plea. Your Counsel Mr Edwards referred me to the Court of Appeal decision of Worboyes v The Queen where it was relevantly stated -

'Given the unhappy state of the court’s lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must form an actual and palpable amelioration of sentence.’[1]

[1] [2021] VSCA 169.

18I also accept that you are remorseful for your offending.  This is supported by: your plea of guilty; the comments and insights you expressed to Mr Cummins in his report of 5 October 2021 (Exhibit 2); and the references that have been tendered on your behalf by your aunt, Ms Evans (Exhibit 4) and your mother, Ms Cameron (Exhibit 3).   

19Overall, taking each of the matters into account I accept that you are entitled to a substantial sentencing discount by reason of your plea of guilty and your remorse and your acceptance of responsibility for the offending.

Personal circumstances

20Mr Unwin, you are now 25 years of age.  You were 23 at the time of the offending.

21Your parents separated when you were around 14/15, at which time the family home was in Tongala.  You later moved with your mother and two younger sisters. 

22Your mother’s letter in particular provides helpful insight into the difficulties of your childhood.  When you were only very young your father was diagnosed with psychotic delusions due to his alcohol and substance abuse.  He was verbally and emotionally abusive.  You witnessed this and were also the focus of his attention when your mother was at work, as you were the eldest child.  Your mother describes that you have continued to have a relationship with your father but that this has been an ongoing emotional struggle. You have struggled to understand his fluctuating mental health and why he has not been able to offer you the support that you have needed from him.

23Your father continues to reside in Tongala where he worked in an abattoir until he was made redundant in early 2021.  You regard yourself as reasonably close to him.  On the evidence before me, I accept that the relationship has been a challenging one and that over the years you have been exposed to his abusive, unpredictable and erratic behaviours and delusions.

24Your mother re-partnered when you were about 17.  You have a very close relationship with your mother and you have a reasonably good relationship with your stepfather.  Your mother works with elderly disabled patients.  Both were present in support of you during your plea hearing.

25You have two younger siblings with whom you get along well. You have another brother but as he is much older than you he left the family home when you were only quite young.   

26You attended school but you were expelled half way through Year 8 for poor behaviour.  A lot of your difficulties at school coincided with the separation of your parents, which you found traumatic.  You later attended Colac Secondary College and stayed for half the year before withdrawing from school and returning to live with your father. 

27You worked with him in the abattoirs for approximately two years.  You then returned to Colac and worked in the abattoirs for approximately 18 months until you were fired because of your drug use.  In 2019 you again worked for several months at the abattoirs in Tongala.  You are currently in receipt of Job Seeker allowance and have some casual work through your aunt and uncle’s transport company in Colac.   

28Over the years you have been in an on again/off again relationship with a young woman, aged 25, who is the mother of your two young daughters.  While you are separated I am told that things remain amicable and you have maintained regular contact with your young daughters.

29You commenced smoking cannabis at 15 and have in recent times reduced your cannabis use.  At 16/17 you began experimenting with ecstasy tablets, other pills, amphetamine and methamphetamine.  By 18/19 you were regularly using methamphetamine.  In more recent times you reduced your dependency and you ultimately ceased using this drug in 2020.  You reported to Mr Cummins that ‘I turned the corner after the home invasion (reference to the offending in Colac on 21/9/20).  At that time I’d smoked a bit of ice.’     

Prior criminal history

30Mr Unwin, you have no prior criminal history and there is no subsequent offending or outstanding matters.  I accept the submission made on your behalf that your offending is ‘out of character’.

31I have taken into account, and have had regard to, all the factors in mitigation relied upon by your Counsel and I have addressed some of these factors below.

Youth

32You are a youthful first offender and I regard this as a particularly important consideration in sentencing you.  Mr Edwards referred to the case of DPP v Ghazi[2] which restates and summarises the well-known principles enunciated in R v Mills[3] and Azzopardi v The Queen.[4]  Rehabilitation of young offenders is one of the great objectives of the criminal law.  It also benefits the community as the effective rehabilitation of a young offender in the long term protects the community from further offending.  The Courts recognise the potential for young offenders to be redeemed and rehabilitated. You are already on your way to demonstrating this, given your recent efforts and your voluntary engagement with Barwon Health, Jigsaw Youth Mental Health Service in Colac.  A youthful offender is not to be sent to prison if such a disposition can be avoided, as it would more likely impair, rather than improve, the offender's prospects of rehabilitation.  In the circumstances of your case, I consider that imprisonment would likely impede rather than progress your ongoing rehabilitation, particularly at a time where the pandemic has resulted in greater restrictions and deprivations for prisoners.

[2] [2015] VSCA 188.

[3] [1998] 4 VR 235.

[4] (2011) 35 VR 43.

Mental health

33Your Counsel sensibly did not argue that your case invoked the Verdins principles.  Instead, he submitted that your poor mental health and challenges were relevant to your particular circumstances and should be taken into account in sentencing you, which I do. 

34You have had contact with mental health services in the past though this appears to have been sporadic and reactive to immediate crisis.  In December 2016 you were seen by the Colac Adult Mental Health Team.  You were then prescribed olanzapine and diazepam by your GP with no further follow up or support.  In February 2019, aged 22, you presented to the emergency department describing auditory hallucinations.  You left the hospital before any follow up arrangements were put in place.  You tried on your own to reduce your illicit drug use though ended up struggling with prescription medications. 

35As previously noted you were assessed by forensic psychologist, Mr Jeffrey Cummins (Exhibit 2).  He assessed you as suffering from symptoms of reactive anxiety and depression, related to your legal situation and the associated risk of imprisonment.  You also presented as being mildly anxious and mildly-moderately depressed. You were not particularly forthcoming in talking about your current mental health symptoms.  This is consistent with your presentation in the lead up to this court hearing.  Your plea was previously adjourned as your mother was concerned by your declining mental health and arranged urgent medical attention (see Exhibit 6). 

36In recent times you have voluntarily engaged with Barwon Health, Jigsaw Youth Mental Health Service in Colac.  You are currently provided with mental health case management to ‘observe, manage and support [your] psychiatric symptoms with medication, and to support with [your] ongoing abstinence from ice and cannabis use’ (Exhibit 5).  You have contact with the service 2-3 times a week.  I was also informed that you are presently prescribed olanzapine and that you have had a consultation with a psychiatrist through the service and were to have another follow up appointment this week.   

Prospects of rehabilitation

37I regard your prospects of rehabilitation to be good, provided you continue to address your drug and mental health issues.  You have no prior criminal history.  You have assumed full responsibility for your offending and you have expressed regret and remorse.  You have a good work history, you are skilled in your trade and you have an opportunity of work at the abattoirs again once your matter is resolved.  You have the strong support of, and connection to, your family, in particular your mother.  You are motivated to be a good parent to your daughters.  You have complied with your bail conditions for close to a year, which includes a residential condition and curfew.  You have not again come to the attention of the police. You have not used ice since the offending but you do continue to use cannabis intermittently.  To your credit, you are voluntarily engaging with Jigsaw Youth Mental Health Services.  Mr Cummins assesses your risk of future violent offending as low-moderate.  While he does not assess you as having a general anger management problem, he considers that you would benefit from such counselling and you have expressed a willingness to do so.  All of these factors instil confidence in the Court that, provided you are prepared to continue the hard work of addressing your drug and mental health issues, you have the potential to be a valuable, contributing member of the community and a positive role model to your daughters. 

Sentencing principles

38General deterrence must usually be emphasized in the punishment of the offence of aggravated burglary.  As stated earlier, Mr Unwin, your offending was serious and I am obliged to sentence you in a way that deters others from behaving in a similar way.  However, given that you are a youthful first offender, general deterrence must give way to the promotion of your rehabilitation as the primary purpose of sentencing. I also regard the protection of the community to be best achieved by your rehabilitation. Further, I consider that specific deterrence plays a lesser role in your case given you have no prior criminal history and are of previous good character.  

39I have taken into account the sentencing guidelines referred to in s 5 of the Sentencing Act, where relevant to your case.  I have also had regard to the current sentencing practices for aggravated burglary.

40In determining the sentence to be imposed in your case I must have regard to the principles of totality and parsimony.  The principle of parsimony requires that I not impose a term of imprisonment if the sentencing purposes can be met by another, less punitive form of sentence. It requires that I give proper consideration to non-custodial options.  As the Court of Appeal stated in Boulton v The Queen, a community correction order provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative, which can be fashioned to address the particular circumstances of the offender and causes of the offending and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[5]

[5] Boulton v The Queen [2014] VSCA 342; see also Bradshaw v The Queen [2017] VSCA 273 at [49].

41As detailed in the prosecution opening, your co-offender Potter was sentenced to an aggregate term of 18 months' imprisonment with a non-parole period of 12 months.  There are some mitigatory factors that operate in favour of Potter, in that he had a lesser role in the offending and he was younger at the time, being 19 years of age.  However, as both parties accepted, his personal circumstances and criminal history provide a clear basis for disparity between you.  Potter was sentenced for the aggravated burglary, along with a range of other charges, including three counts of burglary and two counts of possess prohibited weapon; he had a significant prior criminal history; and he was on a community correction order at the time of the offending. 

42As a result of the material before me and the submissions of the parties, including those outlined in Exhibit 1 and Exhibit A, I had you assessed for a community correction order and have received an assessment outcome report of 20 October 2021.  I just pause there, gentlemen, and I should have checked, both have received those reports, is that correct?

43MR McAULIFFE:  Yes, Your Honour.

44MR EDWARDS:  Yes, that's right.

45HER HONOUR:  Thank you.  I also received a Forensicare report from Barrie Janson of the same date.  The outcome report assesses you as suitable for a community correction order, with recommendations. 

Sentence

46Having considered all of these matters now before the court I am of the view that in your case a community correction order is capable of addressing all of the relevant sentencing considerations.  It will also enable you to build upon the progress you have already made towards your rehabilitation.

47Mr Unwin, with conviction, I impose a community correction order of 18 months. You will need to report to Geelong Correctional Services within two working days.  Mr Unwin, as I understand it and Mr Edwards will speak to you further about this, because of the restrictions introduced in response to COVID, that will be by telephone, but it is incumbent upon you to make contact, that is for you.

48I am now going to explain to you the conditions of this order. The mandatory conditions of the order include that: you must not commit any offences during the period of the community corrections order, that is, 18 months from today, for which you could be imprisoned; you must notify a corrections officer of any change of address or employment within two clear working days after the change; you must not leave Victoria without first getting permission to do so from a corrections officer; and you must obey all lawful directions of a corrections officer. 

49Additionally, you must perform 100 hours of unpaid community work.  I direct that 50 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

50You must  also be under the supervision of a community corrections officer for the period of the order.  You must also undergo assessment and treatment for your mental health as directed.  You must engage in programs to reduce your risk of re-offending, as directed.  They are the conditions of the order, Mr Unwin, do you understand those conditions as I read them out?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  Thank you.  Now, you must make sure that you comply with the order.  I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the operational period of the order, then you are likely to be breached on your order by Corrections, and the matter will be brought back before me.  You will then be dealt with for breaching the order, and you will be exposed to the possibility that you will be resentenced for the original offences and may face a  term of imprisonment.  Do you, Mr Unwin, understand the consequences of breaching the order that I am about to impose?

53OFFENDER:  Yes, Your Honour.

54HER HONOUR:  Last of all, Mr Unwin, do you consent to the making of the order?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  Thank you.  I make the disposal order relating to the blue crowbar, which was unopposed.  Gentlemen, I am not required, looking at the provisions of s6AAA to make a declaration so I am not going to.  Otherwise, unless there are any other further matters that either of you wish to raise?  I just really want to repeat, Mr Unwin, that you are not going to prison for this offence today, you have been placed on a community correction order.  It is an order, it is a punishment, you have to take it seriously, you have to comply and you also must view it as an opportunity to build upon the very real efforts that you have been making, okay.

57OFFENDER:  Yes, Your Honour, understood.

58HER HONOUR:  All right, thank you.  Gentlemen, is there anything further?

59MR McAULIFFE:  No, Your Honour, nothing further, thank you.

60MR EDWARDS:  Nothing further, Your Honour.

61HER HONOUR:  Thank you both for your assistance in this matter.  Adjourn the court please.

- - -