Director of Public Prosecutions v Whiting
[2022] VCC 758
•24 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-02515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN WHITING |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2022 | |
DATE OF SENTENCE: | 24 May 2022 | |
CASE MAY BE CITED AS: | DPP v Whiting | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 758 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Aggravated burglary - criminal damage - committing indictable offence whilst on bail - contravening family violence interim intervention order
Legislation Cited:
Cases Cited:
Sentence:11 months' imprisonment + 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | KPW Lawyers |
HIS HONOUR:
1 Jordan Whiting, you have pleaded guilty to an indictment containing, on
Charge 1, a charge of aggravated burglary, for which the maximum penalty is 25 years’ imprisonment, and on Charge 2, a charge of criminal damage, for which the maximum penalty is 10 years' imprisonment.
2 You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months or a fine of 30 penalty units, and to a further related summary offence of contravening a family violence interim intervention order, for which the maximum penalty is two years' imprisonment and/or a fine of 240 penalty units.
3 You have admitted a prior criminal history which sets out a number of appearances in the Children's Court for offences including theft, criminal damage, unlawful assault and recklessly causing injury. You are now 19 years of age. You were 18 years of age at the time of the commission of the offences.
4 The prosecution relied upon a summary of prosecution opening on the plea which is Exhibit A. I incorporate that into these reasons for sentence and I do not propose therefore to read it out.
5 The facts can be conveniently abbreviated by reference to the events of 19 March 2021 when, at about 3.50 pm, you, along with a number of others including the protected person the subject of the family violence interim intervention order, and another young lady went to the premises the subject of the aggravated burglary in Wodonga, where you were expecting to find the principal victim of the aggravated burglary who was at that address.
6 It is clear from what was said by you and the fact that you went mob-handed to that address that you were intending to assault that person. You apparently believed that he had recently had intercourse with the protected person the subject of the interim intervention order, and also with the girlfriend of another of those who were accompanying you to the premises.
7 When you arrived there you made it clear that you wanted the object of your angst, who was within the premises, to come outside apparently so that you could then assault him. He did not do so. One of the other occupants of the house did come out and attempted to talk you all down. But you, along with the others, were shouting for the object of your attention at the premises to come out and were screaming to a point where the person who sought to talk you down went back into the premises and locked the door.
8 You then, along with others, were involved in breaking a front window at the premises, forcing the front door and going inside the premises. It is the fact that you, along with others, went into the premises that gives rise to the charge of aggravated burglary with intent to assault a person within the premises.
9 Fortunately for your intended victim, he had been able to get out the back door and make good his escape. You remonstrated with others present and sought to find out where he had gone but eventually you left the premises and ran away. You were arrested soon afterwards.
10 In the course of your assault upon the premises you did further damage to other windows of the front of the house: the total damage to the victim's house amounted to $933.98. That gives rise to Charge 2 on the indictment, causing criminal damage.
11 As I have indicated, the protected person under the relevant family violence interim intervention order - which had been issued by the Wodonga Magistrates' Court on 4 January 2021 - attended the scene of the aggravated burglary with you. The order was directed at, amongst other things, preventing you from approaching or remaining within 5 metres of her. During the period of the lead-up to the aggravated burglary you were within 5 metres of that person and you were therefore in breach of the intervention order.
12 You had also been arrested on 31 January 2021, and were charged and bailed for contravening the family violence interim intervention order at an earlier stage and for persistently contravening that same family violence interim intervention order.
13 You were bailed to the Wodonga Magistrates' Court to appear on 18 May 2021. That gives rises to the related summary offence of committing an indictable offence whilst on bail. You were arrested on 22 March at your home address and taken to the Wodonga police station.
14 You made full admissions to being at the premises and wanting to assault the victim. You made no admissions as to damaging or entering the property. It is clear that you believed that the prospective victim of the aggravated burglary had committed an offence against your former girlfriend, and that that conduct had given rise to her losing the child she was carrying apparently. It is not necessary for me to go into detail about that, but it seems clear that you had that belief, whether or not that belief was well founded. It was that belief that motivated your offending on 19 March 2021.
15 You have been in custody since your arrest on 22 March of last year, which is now well over 12 months. Some of that time is attributed to other offending for which you were sentenced in the Magistrates' Court. There are 306 days of pre-sentence detention which I need to consider in determining the appropriate sentence.
16 Turning to matters personal to you: I was provided with a helpful written document by your counsel, Mr Kozlowski, headed Defence Submissions On Plea and dated 25 March of 2022 - that is Exhibit 1 on the plea - along with a report from psychologist Sandra Cokorilo, which is dated 12 November 2021, and a letter from your mother.
17 The report of Ms Cokorilo provides a good deal of information about your background, your education, and your mental health which clearly has suffered considerably from a very difficult upbringing during which you were introduced to the use of a number of different illicit substances and were exposed to the use by both your parents, it seems, of a number of those substances.
18 That family history led to you beginning to use cannabis at an early age and developing habits of use of a number of other illicit substances and the misuse of a number of prescription drugs over a number of years. The report indicates that you had abstained from the use of illicit substances since 2020. But the report also sets out a careful analysis of various mental disorders which give rise to diagnoses of, amongst other things, anxiety, depression, post-traumatic stress disorder, attention deficit hyperactivity disorder, cannabis use disorder, stimulant use disorder, sedative hypnotic or anxiolytic use disorder, antisocial personality disorder and intellectual disability.
19 Those conditions arise in the main from the dysfunctional family background and difficult childhood that you had. There is no doubt that they give rise to significant mitigation in the proper assessment of the punishment that should be imposed upon you as a result of these serious offences.
20 There is a high need to promote the rehabilitation of young people and, despite the fact that you had a number of court appearances, to try and promote a new approach by you, to assist in your rehabilitation and to give a good deal of priority, where possible, to rehabilitation. That of course has to be balanced against the seriousness of the offending conduct.
21 Aggravated burglary is a very serious offence, as the maximum term of imprisonment of 25 years indicates, and ordinarily even for a young person it would require a substantial term of imprisonment.
22 I think that the circumstances of this particular aggravated burglary are a little different from those requiring substantial terms of imprisonment in that you were seeking to persuade the victim of your attentions to come out of the building so that you could assault him. That is not praiseworthy by any means, but in dealing with the offence of aggravated burglary, that was your intention.
23 You were only in the premises for a short period of time, albeit that you took out your frustrations by committing substantial damage to the windows of the premises and the door. This is not even in the middle range of offences of aggravated burglary. I put this down at the lower end of the spectrum of aggravated burglary. Nevertheless it is still a serious offence, just as criminal damage involving more than $900 of damage is a serious offence.
24 Balancing the seriousness of the offending against the matters to which I have referred, and particularly those that are expanded on and dealt with comprehensively and helpfully by Ms Cokorilo, it seems to me that there is a substantial need in your case to look to what might be achieved by a rehabilitative approach rather than an approach involving further incarceration.
25 I note that the pre-sentence report indicates that you meet the criteria for a Youth Justice Centre order. But you indicated to the assessors that you preferred to remain in adult prison where you have been throughout the period that you have been on remand. It seems to me that there is nothing to be gained now from sending you to a Youth Justice Centre.
26 Whilst you may have preferred staying in the adult prison, having become settled there, it seems to me that it is not desirable to prolong your time in an adult prison for much longer. Rather, I look to the community correction order assessment outcome report which takes a favourable view as to your suitability for a community correction order, noting as it does that you are nevertheless at high risk of re-offending.
27 In those circumstances I am inclined to accede to the submission of your counsel that the court can deal with you adequately by way of a sentence of imprisonment along with a community correction order. You indicated a plea of guilty at an early stage and that, during the COVID pandemic, requires the court to give substantial credit for your plea of guilty and a reduced sentence for that reason.
28 The fact that you pleaded guilty is also indicative of a willingness to accept criminal responsibility. I am not sure that I would go so far as to accept that you are genuinely remorseful, but you are entitled to a substantial reduction in sentence for your plea of guilty.
29 Doing the best I can to take into account all of the conflicting considerations, acknowledging the importance of the court denouncing offences such as aggravated burglary and punishing adequately those who commit such offences, it seems to me that rehabilitation is a very significant consideration having regard to your youth and the other factors that have been comprehensively dealt with in Ms Cokorilo's report.
30 I am going to outline what I intend to do and then proceed to impose the sentences formally. I intend to impose a term of imprisonment of 11 months, which will require you to serve a few more days in custody, but I will couple that with a community correction order for a period of 18 months which will be significantly directed at rehabilitative measures.
31 It will also involve a punitive aspect which will require you to perform 150 hours of unpaid community work, but I will order that 100 hours of rehabilitation satisfactorily completed to be offset against that requirement to perform 150 hours of unpaid community work.
32 The order will be onerous in the sense that you will be required to comply with all of its conditions, but it is designed to help you to continue with your rehabilitation and it seems to me, looking at you, that your term of incarceration has not done you much harm and that you are now ready to move on with your life.
33 I hope that that assessment is correct, and this is designed to help you along the way. It may seem burdensome in prospect, but provided you knuckle down and accept it as a more satisfactory outcome than having to do a further substantial term of incarceration, then your approach would be the right kind of attitude. That is what I propose to do, and I shall be asking you in a minute whether you consent to be placed on a community correction order.
34 Mr Kozlowski, I daresay you have discussed that with your client?
35 MR KOZLOWSKI: Yes, Your Honour.
36 HIS HONOUR: Has he indicated to you that he would be prepared to comply with a community correction order?
37 MR KOZLOWSKI: Yes, Your Honour.
38 HIS HONOUR: Yes, all right. I am going to go through the terms obviously with him, but I will proceed to impose sentence formally now and then we will deal with the proposed terms of the community correction order and with his consent to comply with those terms.
39 Jordan Whiting, on the charge of aggravated burglary you are convicted and sentenced to imprisonment for a period of 11 months. On the charge of criminal damage you are convicted and sentenced to imprisonment for a period of one month. On the related summary offence Charge 4 of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of 14 days.
40 On Charge 6 of contravening a family violence interim intervention order you are convicted and discharged. I make that order because it seems to me that although there is a technical breach of the order, the protected person was more than willing to be within 5 metres of you pursuing the same object as you in the commission of the aggravated burglary offence, although of course she did not go into the premises, and as I understand it has not been charged with any offences as a result of the incident.
41 All of those sentences will run concurrently. Therefore the total effective sentence is imprisonment for 11 months. I declare 306 days of pre-sentence detention as time to be reckoned as served on the sentence of 11 months that I have imposed, and deducted administratively from that sentence.
42 In addition, on Charges 1 and 2 on the indictment I propose to order that you be the subject of a community correction order for a period of 18 months. That will commence on the completion of your period of imprisonment. You must attend at the Wodonga Community Correctional Services at 9 Watson Street, Wodonga, Victoria 3690, within two clear working days after commencement of this order which, as I say, commences from the completion of your term of imprisonment.
43 There are a number of terms of the order, including what are the core terms of the order, the mandatory terms that apply to all community correction orders and I will deal with those first. The first of those requires that you must not commit another offence for which you could be imprisoned during the time that the order is in force.
44 Next, you must comply with any obligational requirements prescribed by Regulation 17 of the Sentencing Regulations 2011, which means not turning up to appointments drunk and so on and so forth. You must report to, and receive visits from the Secretary of the Department or his or her delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a community corrections officer know within two clear working days of you changing your address or your job.
45 You must not leave Victoria without first getting permission to do so from the Secretary of the Department of Corrections or his or her delegate, and you must obey all lawful instructions from, and directions of the Secretary or delegate. All of those conditions apply to all community correction orders but in addition to those terms, there are some other conditions that apply to this particular order.
46 Firstly, you must perform 150 hours of unpaid community work over a period of 18 months as directed by the regional manager. I order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with that order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
47 In addition, you must be under the supervision of a community corrections officer for the period of 18 months during which the order is in force. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager.
48 You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by the regional manager, and you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
49 Do you understand the order that I have proposed?
50 OFFENDER: Yes, I do.
51 HIS HONOUR: Are you willing to abide by the terms of the order?
52 OFFENDER: Yes, I am.
53 HIS HONOUR: You need to understand that if you fail to comply with the terms of the order then you could be brought back to this court, it may well be before me, and sentenced to a term of up to three months' imprisonment for breaching the order as well as giving the court power to substitute a different sentence on the original charges, which would almost certainly be a further term of incarceration. Do you understand?
54 OFFENDER: Yes, I do.
55 HIS HONOUR: So it's very important that you don't commit any further offences during the term of the order that are punishable by imprisonment, and do not breach the terms of the order because otherwise you'll be back to square 1 and leave the court with little option other than to impose a term of imprisonment. Do you clearly understand that?
56 OFFENDER: Yes, I do.
57 HIS HONOUR: All right. Do you also understand that there will be times when you will be very frustrated about having to comply with the terms of this order? Do you understand that, over a period of 18 months, it's not going to be easy to comply? Do you understand?
58 OFFENDER: Yes, I do.
59 HIS HONOUR: Are you willing to work through those periods of frustration?
60 OFFENDER: Yes, I do.
61 HIS HONOUR: And to give it a red hot go?
62 OFFENDER: Yes, I am.
63 HIS HONOUR: All right. I take your indications via the link as consent to the order being made, effectively providing me with your signature on the order and I now will sign the order, which will bring it into effect.
64 There is one other thing that I need to draw your attention to in respect of the order. If you are ill or if there are exceptional circumstances that were unforeseen the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.
65 In either case you must notify the Wodonga Community Corrections Centre and I recommend that you obtain legal advice if any of those things happen. The sort of circumstances that may give rise to a variation of the order is if you become seriously ill, have a nasty accident or for one reason or another are unable to perform the unpaid community work or to comply with other aspects of the order. Do you follow?
66 OFFENDER: Yes, I do.
67 HIS HONOUR: So you're not trapped in the order if something unforeseen and exceptional occurs. Anyway, you can get some legal advice if that sort of situation arises.
68 But for your pleas of guilty I would have sentenced you to imprisonment for a total effective sentence of three years and three months' imprisonment, with a non-parole period of two years and two months.
69 Are there any other orders that need to be made, counsel?
70 MR O'DOHERTY: Not from me, Your Honour.
71 HIS HONOUR: Thank you. Mr Kozlowski, nothing else?
72 MR KOZLOWSKI: No, Your Honour.
73 HIS HONOUR: Yes, all right. Mr Whiting, I hope that we won't meet again because if we do it might be because you're in breach of the order. I wish you well in completing the order satisfactorily and in taking a better direction in your life in the future.
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