Director of Public Prosecutions v Victor (a pseudonym)

[2017] VCC 551

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FINN VICTOR (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	9 May 2017
DATE OF SENTENCE:	9 May 2017
CASE MAY BE CITED AS:	DPP v VICTOR (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 551

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. L. Bourke
For the Accused	Ms T. Theocharous

HIS HONOUR:

1Finn Victor,[1] you have pleaded guilty to one charge of aggravated burglary and one uplifted charge of assault with a weapon.  Those crimes carry maximum penalties of 25 years and 2 years respectively.

[1] A pseudonym.

2You are 18 years of age and were 18 years of age at the time of the offending.  You clearly fall to be sentenced as a young offender and indeed had the offending occurred two months earlier it would have been dealt with in the Children's Court.  You get the benefit of an early plea of guilty.  You get the benefit of remorse that is associated with that, as I accept your counsel's assurance that you are remorseful and you must also of course get the utilitarian benefit.

3You gave a full and frank record of interview which was somewhat scattered because of your use in the days prior to this offending of methylamphetamine.  You instruct your counsel and I accept that you had probably not been asleep for a number of days.

4Whilst you have a couple of Children's Court matters, there are no prior convictions alleged and I think that your prospects of rehabilitation are very good and the risk of your reoffending, if you do not use drugs, is low.

5I accept that you have not used drugs since the incident and you do not have alcohol problems.  All those matters go very much in your favour.

6A summary of the offending is that on 2 September 2016 you attended an address in a town which was occupied by a woman you were in a sexual relationship with.  She at the time was 28 years of age.  You went over her back fence and knocked on her bedroom window.  When she opened the blind you saw there was another male in the bed.  You told police that you knew that she slept with other people but this apparently you believed was a friend.  There is some confusion in all that and I accept that you were drug-affected at the time.

7In any event, on seeing that you became enraged and demanded the male come outside and fight with you.  When the blind was dropped, you punched the brickwork and smashed a window.  You damaged your hand in that process and ultimately had to go to hospital.  You left and understandably so did the other male.

8In any event, the first victim was frightened by all of this, sent text messages out to her friends and the second victim came down to sit with her. 

9Shortly afterwards you re-attended and there is some dispute about this but the gist of it is all the same.  You went to the security door, you had a knife with you, you cut a hole in the security door.  They shut the door.  You then went around to her kitchen window, slit it open and got inside.  You had the knife with you and you clearly were aware of people in the premises.  That gives rise to the aggravated burglary.

10You wanted to fight the second victim who I think was quite young, but in any event, the first victim grabbed you around the waist, struggled, she was crying and that seemed to calm you down.

11Police attended the house after you had left and you were not found for a while.  You were found at approximately 3.30 pm that afternoon at the police station and were arrested.  The second victim has refused to provide a statement.  I am assuming that the first victim has.  It is the basis of the charge that is brought against you.

12It is important in this situation to take the view that you have given a full and frank record of interview and your admissions have made it a much easier case for the Crown than otherwise would have been.

13Insofar as the offending is concerned, I am well aware of the authorities on aggravated burglary, but each case has to be looked at in the circumstances in which it occurred.

14I accept that yours was one where you were, in effect, I do not mean this in quite the way it sounds, provoked, it was spontaneous, un-premeditated and in your drugged and youthful state, you simply lost control for a period of time.

15There is no victim impact statement. What has occurred is that at the time of this offending it seems clear that the first victim was pregnant to you.  She has since delivered a child in March of this year.  Upon the offending, there was an intervention order put in place that has now been varied so that you can attend.  You now apparently get along with her.  You are attending every day to look after this small baby and that is all very much to your credit and gives one hope insofar as your rehabilitation is concerned.

16You were kept in adult custody for four days after this and I accept that that has a most salutary effect upon you.

17When you were then bailed, you were put onto a CISP program and you have been diligent in that for a period now of some 9 months.  You have attended regularly at all of the things that have been asked of you despite having a memory disability because of matters that are contained within the report that they tendered.  You are living with your sister, you have been working, you do have a reasonably good work record.  You have been working as a scaffolder.  Indeed, you are to start a scaffolding course of some weeks duration next week.  You have been working with your father.

18Clearly accepting that you have not used drugs since and that you have not been in trouble since, you have stable accommodation with your sister, you have work available to you which incorporates a degree of education, you have the child to occupy your mind and to give you motivation, you are drug-free, there is no alcohol and you have no prior convictions.

19It seems to me in this situation that to deprive you of your liberty for any significant period of time or indeed any period of time in this situation would act very much to the detriment of the community and would serve absolutely no useful purpose whatsoever.

20In saying that I rely upon the authorities of DPP v Toumngeun, DPP v Tokava,
R v Leach, in much of which the president of the Court of Appeal made comments about the application of mercy even with very serious offending with young people, that it rebounds very much to the benefit not only of the offender but of the community as well.  I think that those cases describe your particular situation perfectly.

21In any event there still has to be a significant penalty involved in all of this.  What I am going to do is place you on a community corrections order.  It will be for three years.  You will be with conviction which is a penalty in itself and you will be required to complete 250 work hours in that period of time.

22Having discussed it with your counsel, your life does seem to be on track and I can see no useful purpose in putting any other conditions within that community corrections order.  However what you will have to realise is if you agree to undertake it, that if you are brought back before me on a breach for offending of this nature, there will be no choice but to incarcerate you. 

23MR BOURKE:  As Your Honour pleases.

24MS THEOCHAROUS:  As Your Honour pleases.

25HIS HONOUR:  I should add, I am well aware of the authorities on aggravated burglary so I am not going into great detail with general and specific deterrence and all those matters.  Clearly they are contained within those authorities and I am aware of them.

26Yes, if you would just stand up for me a second, all right?  What I said before, I mean, all right, if you were 25 or something like this, this would not be happening, all right?  You would be going through that door.

27OFFENDER:  Yes.

28HIS HONOUR:  It could have easily been the situation where if you had got to him you put a knife in him, right?  It had nothing to do with him.  You have just got to stay on the straight and narrow.  I just want to make you really understand that if you do get brought back for breaching this, for this sort of offending, you will go through that door, all right?

29OFFENDER:  Yes, Your Honour.

30HIS HONOUR:  All right.  Good luck.  All right, thanks for that.

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