Director of Public Prosecutions v Warren
[2018] VCC 314
•23 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01937
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALLAN WARREN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2018 | |
DATE OF SENTENCE: | 23 February 2018 | |
CASE MAY BE CITED AS: | DPP v Warren | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 314 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited: DPP v Bowden [2016] VSCA 283; Akoka v The Queen [2017] VSCA 214
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms E. Tueno | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Patrick Dwyer |
HER HONOUR:
1 Callan Warren, you have pleaded guilty on Indictment H11414573 to one charge of home invasion, one charge of common law assault, one charge of theft and one charge of possession of a drug of dependence being cannabis. You have also agreed to me hearing and have pleaded guilty to one summary charge of possessing prohibited weapons without exemption or approval, namely nunchucks, machete and dagger (Summary Charge 8).
2 The maximum penalty applicable for the offence of home invasion is 25 years’ imprisonment. The maximum penalty for the offence of common law assault is five years’ imprisonment. The maximum penalty for the offence of theft is 10 years’ imprisonment. The maximum penalty for possession of a drug of dependence (cannabis) is five penalty units. The maximum penalty for the summary offence of possessing prohibited weapons is 240 penalty units or two years’ imprisonment.
3 Your crimes arise out of events which took place on 21 May 2017.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case, in my opinion, are most serious and disturbing.
5 I turn to a summary of your offending. At the time you were 28 years of age and your victim, Chris Beckett, was known to you.
6 On 21 May 2017 at approximately 2.30am, you and a co-offender attended the home of Beckett and his mother in Croydon. Beckett was in the garage playing on his X-Box. He heard people enter the garage and looked up to see you and your co-offender enter the garage.
7 You were wearing a black plastic mask with cut-out eyes which was moulded around the nose and mouth. Your co-offender was wearing a black balaclava with a hole cut out for the eyes.
8 You held a machete to Beckett’s face and said “give me the drugs, cunt”. Beckett recognised your voice. Beckett said “What are you doing, Kal?”, to which you said “Give us the fuckin’ drugs and crossbow” (Charge 1).
9 Beckett attempted to force the machete down the arm of the couch to get it off you. However, you wrestled the machete back. You then punched Beckett a few times in the left eye and on the nose, until his nose bled (Charge 2).
10 You again asked where the drugs were, and Beckett pointed to an ammunition tin next to the television. He attempted to get up, but you pushed him back onto the couch.
11 Your co-offender took approximately 10 bags of marijuana out of the ammunition box and put it in a backpack that belonged to Beckett. Your co-offender also picked up some ammunition casings above the television and asked Beckett, “Where are the real ones?”
12 Your co-offender also picked up a black replica gun and a replica hunting knife. Beckett told your co-offender the bullets were blanks and the guns were home-made. Your co-offender threw the ammunition in the bin and left the room. Beckett believed he could identify your co-offender’s voice as being Brad Jones, a person also known to him.
13 At one stage your co-offender was holding a knife.
14 You said to Beckett “Don’t say anything, don’t do anything or I’ll come back and kill you”. You asked Beckett for his phone, which he handed to you. You then threw it on to the ground and stomped on it.
15 You and your co-offender then left the property with the cannabis, Beckett’s broken phone and two home-made guns (Charge 3).
16 Police were called to Beckett’s home at approximately 4.40am. Beckett was arrested for possession of cannabis and firearms-related matters.
17 At approximately 11.05am police attended at an address in Croydon North where you had been living with your grandmother. You were arrested and taken for interview to the Knox Police Station.
18 Your grandmother gave police permission to search her home and your car. In your car, a number of items were found – a machete, a set of nunchucks, a dagger (Summary Charge 8), a filleting knife, black face mask, a pair of black gloves, one snaplock bag of green vegetable matter (Charge 4), and one broken black Samsung mobile phone.
19 At the interview at Knox Police Station with police you admitted you attended the property and that you took Beckett’s drugs. You also admitted to punching Beckett in the face and that at the time you did this you were wearing a black mask.
20 You initially denied attending the property with another male, but then admitted you were there with someone else who you did not wish to name. You admitted taking the cannabis but denied taking any firearms.
21 You admitted that the knife, machete, mask and gloves that were found in your car were those you used when you attended Beckett’s property. You said you used those items to make it easier, and to “Make Beck fearful”.
22 You admitted you wore the mask to hide your identity.
23 You said the firearms taken from the property had been disposed of. You denied destroying them and could not say who had destroyed them.
24 The reason given for your offending was “It popped into my head and I got fuckin’ bad thoughts about him and I just decided to do a silly thing and done what I done. I’m regretting it now”.
25 You admitted owning the dagger, machete and nunchucks located in your car and admitted the mask in the car was the one you used during the incident and the cannabis found was what you stole from Beckett.
26 Whilst Beckett had referred to Bradley Jones as also being involved in the offending, it appears that was investigated by police and Jones had not been charged. No issues of parity arise, therefore, when sentencing you.
27 The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject later.
28 A number of aggravating features of this case were that there were disguises and a level of premeditation. I stress, in relation to the presence of a machete being held, I have concluded I do not regard that as an aggravating feature of your offending.
29 You have admitted a criminal history relevant to one driving matter. You appeared at Ringwood Magistrates’ Court on 8 October 2009, on a charge of driving in a manner dangerous. You were fined $400 without conviction. Your licence was cancelled and disqualified for a period of six months effective from 8 October 2009. Suffice to say you do not have any prior criminal offences of the same type as that before me, or indeed any criminal offences. I accept you are to be sentenced as a person of prior good character relevant to criminal offending.
30 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, in particular the victim of your offending, has been spared the ordeal of having to give evidence upon your trial.
31 By way of chronology, your offending occurred on 21 May 2017 and you were charged on that same day. On 22 May you were remanded in custody, and on 24 July you were granted bail. On 14 August there was a committal case conference, then on 21 August there was a further committal case conference, at which time this matter resolved and proceeded by way of a straight hand-up brief. You pleaded guilty to the charges and were committed to this Court for your plea hearing.
32 As at this plea hearing you had spent 64 days in custody by way of pre-sentence detention.
33 I accept that your plea was indicated at an early stage and such is a relevant consideration in mitigation of sentence. I also note you admitted your offending at the time of police interview on 21 July.
34 You are entitled to a sentencing discount by reason of the fact that you have so pleaded and the early timing of it. As I say, the community has been spared the time and cost of a trial and witnesses, in particular Beckett, have not been required to give evidence.
35 In the circumstances, I am prepared to accept that your plea of guilty indicates remorse for your offending.
36 Your counsel, Mr Farrington, prepared a written outline of submissions for your plea hearing and addressed them during the course of it. In addition, a number of documents were tendered, including the Court Integrated Program Report (CISP) dated 24 July 2017, it seems for a bail application. For the purposes of that assessment, you were interviewed in custody on 18 July 2017. At initial assessment you presented with a number of issues, including a history of methylamphetamine (Ice) use, which had commenced approximately 12 months prior, that is around July 2016. You attributed the commencement of that use to coping with a relationship breakdown.
37 At the time that you were placed into custody on 22 July, you were using approximately 1 gram of Ice intravenously Thursdays through Sundays.
38 You reported no previous history of substance treatment, although expressed a desire at that time to complete an assessment with an accredited drug and alcohol worker and counselling, should you at that time be granted bail.
39 You reported that in your initial days in custody on remand, you experienced a collapsed lung, and after contracting pneumonia spent some time in Intensive Care at St Vincent’s Hospital receiving treatment. At the time of interview on 18 July, your physical health was improving.
40 For the purposes of your bail application, I was told that you would be living at your father’s address in Boronia, with your father and his partner. You were then to attend a further assessment in relation to substance use issues with an accredited worker and to attend with your general practitioner in Croydon North. You were to attend regular appointments with your CISP case manager and were expected to immediately, should you be bailed at that time to attend the CISP office for clarification of your bail conditions and referral to appropriate treatment. You were, as I said, granted bail.
41 I turn to the Progress Report prepared on 9 August 2017.
42 That report indicated you had been assessed by the CISP Program and deemed appropriate for case management. You presented with issues in relation to substance use and physical health issues.
43 Reference was again made to your history of methylamphetamine use. Upon assessment, it was noted that you showed a desire to engage in community alcohol and drug treatment should your bail then be granted, as I have said.
44 A referral had been placed with ACSO for an assessment for your AOD needs to be undertaken. You attended that appointment and were referred for counselling.
45 It was reported in August 2017 that you had a positive engagement with your CISP case manager, attending all appointments and the scheduled AOD assessment appointment. You indicated you had returned to full-time employment in your father’s business.
46 There was an Interim Update Report dated 30 August 2017, which confirmed, however, you did not attend your appointment with Ms Ryan at EACH on 29 August 2017.
47 In a further Court report update from CISP dated 3 October 2017, it was also noted in that report that you had failed to attend with Ms Ryan from EACH on 25 September 2017. Your father had contacted the service and advised them you were unwell. Due to your then health concerns, there had been minimal progress in your treatment plan.
48 In a second Progress Report dated 21 September 2017, it appeared from conversations with ACSO, you had not been able to engage in treatment due to being hospitalised with health concerns.
49 The CISP case manager was advised you were looking to continue with a drug service closer to your home and as such you were referred to EACH in Ringwood. Your CISP case manager, Raoul Sorto, contacted EACH and was advised that you had attended one of three appointments. One being rescheduled due to illness and one you did not attend, and I have previously referred to those occasions.
50 Reference was made to you having been hospitalised in August due to health concerns regarding your lungs.
51 It was reported you were then experiencing symptoms associated with depression due to your ongoing health concerns, which at that time prohibited you undertaking employment. You had spoken positively about wanting to make positive life choices and to resume employment when your health permitted. You were referred to a general practitioner at Lyons Road Medical Centre for a mental healthcare plan assessment, scheduled for 22 September 2017.
52 Regrettably, it seems you have not undertaken any drug treatment of any duration. I note the difficulties you had healthwise in that time.
53 In his written submissions, Mr Farrington set out your personal details. At sentence you are 29 years of age, and the eldest of four children. Your parents separated many years ago, and you are supported by your father (who I note was in Court at your plea hearing), having had no contact, it seems, with your biological mother.
54 You are currently single, however had previously been in a relationship, with a daughter 5 years of age of that relationship. You saw your daughter regularly and provided support to your ex-partner with parenting of your daughter. Your ex-partner suffers with psoriatic arthritis and fibromyalgia (acute pain to muscle and bones). A reference from her was before me and I shall refer to that later in these sentencing remarks.
55 You were educated to the end of Year 9, attending four secondary schools. I was told you were, at that time, living with your mother and moved house frequently. After you left school, you commenced working for your father at his business, SV Equipment Pty Ltd, manufacturing industrial steam cleaners.
56 Mr Farrington, in his written and oral submissions, urged that you should receive a discount for your plea of guilty, and I have already referred to that. I also accept your plea was entered at the earliest opportunity, and that you made full and frank admissions to your offending when arrested and interviewed.
57 Mr Farrington also submitted your plea of guilty was an expression of remorse, and I have already acknowledged that.
58 Mr Farrington tendered a reference from Karen Donovan of SV Equipment, dated 15 February 2018.
59 Ms Donovan confirmed you had been employed in that business for the last three years. She described you as highly skilled in your role, a responsible, hardworking and reliable team member, willing to take on overtime when available.
60 Ms Donovan acknowledged that you were her stepson and that they held your position open until you returned to work following your release on bail. She described you as remorseful for your offending. She understood you were now drug free. She also referred to you supporting your young daughter financially, and of spending time with her on a regular basis.
61 Mr Farrington also tendered a reference from Cher Buntine dated 15 February 2018. She had known you for approximately nine years and was your ex-partner. You have a child together, Ava-Rain.
62 She believed you to be sorry for your offending and that you had shown remorse for it.
63 She described that for a time prior to your offending she noticed you were changing and slowly starting to get out of control, although she did not understand why. She described that you and she had always had a good relationship, honest and open. However, at the time of your offending, you were arguing a lot. You were not the same person she had previously known. She was angry and hurt by your offending as you knew she depended on you to help with your daughter. In addition, Ms Buntine had her own medical issues. Since you had been released on bail, you had shown you could do the right thing, stay away from people that you had previously been hanging around with and staying away from drugs. In the time she had known you, apart from this offending you were hardworking, trustworthy, kind and caring.
64 Mr Farrington did not rely upon exceptional circumstances relevant to family hardship. I do, however, take into account that while serving your sentence, you will be concerned about how your daughter and your ex-partner are coping without you. I accept that this will impact upon you not being able to help them and that will make your time in custody more difficult for you. Such can be taken into account, and I do, consistent with general sentencing principles in mitigation of sentence.
65 Mr Farrington submitted contact with your daughter prior to your plea hearing, had been given priority by you (it seems over drug counselling) aware this sentence would likely involve further imprisonment.
66 Mr Farrington referred to your disadvantaged background, as contained within the various reports before me. Disadvantaged background can and is relevant when sentencing (see Hogarth v R[1] and Scott v The Queen[2]).
[1] (2012) 37 VR 658
[2] [2013] VSCA 347
67 As I discussed with Mr Farrington, however, you have been able to avoid criminal offending for 28 years of your life, up until this incident. Your offending before me was clearly related to your drug use.
68 Mr Farrington also referred to your history of drug use, particularly cannabis and methamphetamine abuse. That you began smoking methamphetamine at 25 years of age, and were using about a gram a week at the time of this offending before me. You instructed you had not used methamphetamine since your release on bail on 24 July 2017.
69 Mr Farrington in his written submissions, referred to your lack of criminal history, that you had insight into your offending, had strong family support, and good prospects of rehabilitation.
70 Mr Farrington submitted you were a person of good character without any prior criminal history. I accept that submission, as I have stated previously.
71 Mr Farrington referred to your time in custody when you were most unwell spending some time in intensive care in hospital. He confirmed you had full time employment, most recently working five days a week.
72 I discussed with him my concern you had not yet adequately addressed your drug use despite such being significant and heavy use at the time of this offending. I also note of course your health issues. I encourage you to undertake as many programs relating to drug use which you can find whilst in custody to improve your chances of remaining drug-free when you do return to the community.
73 Mr Farrington submitted you had identifiable supports in the community and incentives to remain drug-free when you did return to it and, that I should regard your rehabilitation prospects as very good.
74 In my opinion, absent at the moment counselling in relation to your drug use, but I do note you have had other health issues. I regard your prospects as good. However, they will be greatly improved, as I said, by you undertaking courses relating to drug use to assist you to avoid coming back before the Court for further offending, in particular for offences as serious as those before this Court today.
75 Regarding disposition, Mr Farrington, appropriately in my opinion, conceded your offending behaviour warranted a term of imprisonment.
76 The prosecutor, Ms Tueno, submitted the only appropriate disposition was a term of imprisonment with a non-parole period. Ms Tuemo referred to the need for general deterrence and the protection of the community as being relevant sentencing considerations.
77 She provided a table of decisions, the ‘Victorian Supreme Court of Appeal overview of aggravated burglary offences,’ referrable to cases decided by the Court of Appeal from 2007 to February 2018. In particular, I was referred to the decision of Akoka v The Queen[3], although I note a large number of differences when sentencing Akoka to you. For example, Akoka was 21 at the time of the offending, had undertaken significant rehabilitation, specifically residing for 12 months at Odyssey House. He also had an extensive prior criminal history.
[3][2017] VSCA 214
78 As I discussed with counsel, it is difficult comparing cases factually as facts vary enormously from case to case, as do all matters in mitigation and personal to an offender. Ultimately, I have to determine the appropriate sentence based on relevant sentencing principles, and of course all matters relevant to you in your case.
79 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence which is of considerable importance in a case such as this.
80 There is a need for specific deterrence, although it need not loom large in the sentencing process. I have noted you do not have any prior criminal offending. I of course note you have not previously served a term of imprisonment.
81 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending. Ultimately, as I say, that will depend upon you being able to abstain from the use of illicit substances, in particular, drugs such as Ice, and maintain a stable and productive lifestyle.
82 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
83 When sentencing you, I apply the principles of totality and proportionality, also as I have said being aware this is your first sentence of imprisonment.
84 I sentence you as follows.
85 On Charge 1, you are convicted and sentenced to 3 years imprisonment.
86 On Charge 2, you are convicted and sentenced to 8 months’ imprisonment.
87 On Charge 3, you are convicted and sentenced to 6 months’ imprisonment.
88 On Charge 4, you are convicted and fined $150.
89 On Summary Charge 8, you are convicted and sentenced to 1 month’s imprisonment.
90 Charge 1 is the base sentence and I direct the following in relation to cumulation and concurrency.
91 I direct that 4 months of Charge 2 be served cumulatively upon Charge 1.
92 I direct that 2 months of Charge 3 be served cumulatively upon Charge 1.
93 I direct that 7 days of Summary Charge 8 be served cumulatively upon Charge 1.
94 That results in a total effective sentence of 3 years, 6 months and 7 days’ imprisonment, and I direct that you serve a period of 2 years before you are eligible for parole.
95 For clarity, the orders for cumulation are upon each other and upon the base sentence.
96 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 71 days in custody (up to and including yesterday, 23 February 2017) by way of pre-sentence detention, and direct that that be entered into the records of the Court. I will come back and confirm that or otherwise in a minute.
97 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to all these charges and if you had been found guilty of them by jury verdict, I would have sentenced you to a term of 5 years and 6 months imprisonment and set a non-parole period of 4 years. That is if you had pleaded not guilty, you follow.
98 The prosecution made application for a disposal order in relation to the machete, nunchucks and dagger. Mr Farrington, who appeared on your behalf, consented to the order being made, and I make the order in the terms sought.
99 A forfeiture order was also sought by the prosecution regarding the cannabis and mask. Mr Farrington also consented to the order being made in those terms, and I make the order in those terms.
100 The prosecution also made application for the taking of a forensic sample pursuant to s464ZF Crimes Act 1958. Mr Farrington also consented to the order being made, and I make the order based on the seriousness of your offending, and it is for a saliva sample.
101 I must advise you the authorities may use reasonable force in order to obtain that sample.
102 No other orders were sought.
HER HONOUR: All right, anyone want to help with the maths? It all adds up?
MR FARRINGTON: It all adds up.
HER HONOUR: I’m not asking if you agree with them. Did anyone want me to read them out again? No, excellent.
MS BROWN: No, Your Honour.
HER HONOUR: Excellent. What about the PSD?
MR FARRINGTON: It’s correct, Your Honour.
MS BROWN: It’s correct, Your Honour.
HER HONOUR: It’s right is it, excellent. Well, that’s all I needed to know. Are there any other matters before I leave the bench and before Mr Warren leaves court?
MS BROWN: No, Your Honour.
MR FARRINGTON: No, Your Honour,.
HER HONOUR: No, thank you very much for your assistance. Thanks Mr Warren, you can go out there now, if you wouldn’t mind please. Yes, all right. Thank you both.
MS BROWN: Your Honour, pleases.
MR FARRINGTON: Your Honour, pleases.
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