Director of Public Prosecutions v Whittingham

[2017] VCC 1525

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00048

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW WHITTINGHAM

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2017
CASE MAY BE CITED AS:	DPP v Whittingham
MEDIUM NEUTRAL CITATION:	[2017] VCC 1525

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	Ms C. Parkes
For the Accused	Ms J. Ristivojevic

HIS HONOUR:

1Matthew Whittingham, you have pleaded guilty to one charge of aggravated burglary and one charge of theft.  The maximum penalties for these offences are respectively 25 years' imprisonment and ten years' imprisonment.

2The circumstances of the offending are as follows.

3On the early morning of 22 March 2016, you attended the home address of a Mr Duc Tien Vu.  Mr Vu was alone at the address at the time.  You were in company of two other offenders, a Mr Kelmendi, with whom you had arrived in a Holden Utility vehicle, and a Mr Billy Trajanovski, who had arrived driving a black BMW SUV. 

4You walked down the driveway of the address and opened the gate leading to the rear of the property.  Mr Trajanovski drove the BMW into the driveway and parked near the front door of the house.  CCTV footage showed the BMW had a false registration plate.

5Mr Trajanovski got out of the vehicle and was carrying a sawn-off long arm firearm.  He was wearing distinctive clothing and had a black item over the lower part of his face.  He was also carrying a red and light grey backpack.

6You were wearing a grey hooded jumper with a distinctive motif, dark coloured cargo pants and dark runners.  You had a black cloth covering the lower half of your face and you carried a satchel over your shoulder.

7Mr Kelmendi had a distinctive Mohawk style haircut and was wearing a grey hooded jumper with yellow motif, runners and was carrying a baseball bat.

8You and Mr Kelmendi walked to the rear of the property.  Using a crow bar, you forced open the rear sliding door of the house and entered the premises along with Kelmendi.  At this time, Kelmendi was still armed with the baseball bat.

9Whilst inside the house, you and Kelmendi stole two Samsung laptop computers.  Mr Vu went out of the front door of his house, having been alerted by the sound of both footsteps and voices.  He asked Mr Trajanovski what was going on and was told to get back into the house.

10Trajanovski demanded Mr Vu's mobile phone and produced the firearm.  In response to this threat, Mr Vu handed over his mobile phone and was ushered back into the house.

11Whilst this was taking place at the front of the house, you and Kelmendi had run along the side of the house to the rear of the BMW into which you threw the laptop bag containing the stolen laptops.  You and Kelmendi then ran off down the driveway, got into your vehicle and drove away.  Your co-offender,
Mr Trajanovski then drove away in the BMW.

12You were arrested on 2 September 2016 and recovered from your property were the shoes you were wearing at the time at this offending and the backpack that you had been carrying.  You were charged in relation to this aggravated burglary on 7 October 2016.

13I turn now to your personal circumstances.

14You were born on 8 April 1984 and you are now 33 years of age.  Your parents separated when you were a few months old and you have had no relationship with or knowledge of your father.  You remained living with your mother and siblings until you left home in your early teenage years.  You then commenced, what was described by your counsel on the plea as a transient lifestyle, living on the margins, seeking accommodation and refuge where you could.

15You have two daughters, the eldest of which is subject to DHHS intervention due to her mother's inability to provide sufficient care for her child.  You are currently estranged from the mother of your second child, who is now eight months old.  You have not had any contact with your younger daughter since her birth due to your being on remand.

16In terms of your education, you had ongoing learning difficulties from a very early age and you left education around the start of Year 8 and then commenced working as a grocery stacker.  You are a self-taught mechanic and have on occasions worked as a means of supporting yourself.  But in short, you have not had any long-term, stable employment since leaving school at the age of 14.

17You commenced using alcohol at the tender age of ten years and began using cannabis in your early teens.  By your mid-teens, you had commenced using amphetamines, including methylamphetamine and you were self-medicating for your condition of ADD, Attention Deficit Disorder.

18Also in your teens, you started using cocaine and MDMA, and I am instructed that you have been using methylamphetamine for many years.  I am told that you were affected by that drug when committing the offences before this court.

19On your plea, a report was tendered by Professor Warrick Brewer, dated 30 August 2017, Exhibit 5MW on the plea.  You told Professor Brewer of how you had used Valium in the past to manage your anxiety and that it "took a while" for you to make decisions.

20Your report to Professor Brewer was that your memory suffered following a motorcycle accident that had occurred when you were in your early 20s.  You told Professor Brewer that you did not know in hindsight why you committed this offence, apart from, "My mates needed the money.  I am easily led."

21As to your insight, you recalled the impact upon you and upon your development of not having a father and you claimed to Professor Brewer that you have consistently attempted to be there for your children.

22You regard the DHHS as placing hurdles constantly in your way.  In your view, you had made an attempt to bring your life back on track.  You had been clean from drugs, but then a further hurdle put in place by DHHS left you "giving up" and triggering a decline over the past six years.

23You were assessed by Professor Brewer to have an IQ falling at the high end of the borderline range.  You are dyslexic and you have a history of multiple minor close head injuries and a significant history of poly-substance abuse beginning in early adolescence.  You have been admitted as an inpatient for a psychotic episode linked to methamphetamine use.

24In Professor Brewer's opinion,

"The most compelling aspects of your presentation and performance… is the very likely presence of significant emotional distractors on cognitive processing and learning during early development. When structure is provided, you can learn, albeit slowly.

There is no convincing evidence to suggest any focal neural compromise from a closed head injury.  There is no evidence that Mr. Whittingham has ever sought or received support for investigation and treatment of symptoms of post-traumatic stress."

25At paragraph 23 of his report, Professor Brewer states,

"The available, albeit limited reports suggests that Mr. Whittingham was present at the crime scene more as a result of being led by his peers relative to any more personally immediate need to resource his substance abuse at the time.  He nevertheless does carry intact appreciation of the wrongfulness of his actions."

26And finally,

"Whilst his suite of cognitive, emotional and psychological vulnerabilities reasonably contributed to his offending, there is no evidence in this clinician's opinion to suggest that these vulnerabilities caused his offending."

27It is apparent that you would benefit from the therapeutic impact of a highly structured and routine environment, such as that which imprisonment affords.  However, it is unlikely that within a prison setting, you would receive the level of clinical psychological treatment required to address your long term developmental issues.

28Your history does not reflect any independent initiation of supportive therapy or treatment for your substance abuse.  Your history thus does not offer confidence as to future recovery or for the risk of reoffending.  Professor Brewer assesses you as being of high risk of reoffending.

29You have a prior criminal history dating from 2001.  You have been sentenced to Youth Training Centre, community-based orders, suspended imprisonments and immediate terms of imprisonment.  The longest term passed upon you is one of 18 months with a non-parole period of nine months.

30You do have a relevant prior history for violence and for burglary.  However, you do not have a prior history for violence involving weapons.  In my view, it is clear that this offending represents an escalation.

31I am told and accept that you have the continued support of Ms Amanda Kwon, who regards herself in essence as your sister and who was in court on your plea.  She was able to provide Professor Brewer with a narrative of your history, that is to say, your story and she will be there for you upon your release from prison.

32Upon your release, it is clear that you need to be somehow locked into drug relapse prevention strategies and that you will require structured support in the community.  Your prospects for the future in terms of your general rehabilitation depend upon this.  Put simply, Mr Whittingham, you need to stop taking drugs.

33Your future and as importantly, any future relationship with your children depends upon this and that requires you to take responsibility for your life and to take the necessary actions.

34I turn now to the offending.

35Aggravated burglary is a serious offence as the maximum penalty makes clear.  This offending is a serious example of that offence.  This was a confrontational aggravated burglary.  The offending was planned.  It was in company.  All three offenders were disguised.

36You forced entry into the premises with a crow bar.  Weapons were carried.  A baseball bat by your co-accused, Mr Kelmendi and a firearm by your
co-accused, Mr Trajanovski.  I make it clear, Mr Whittingham, that I do not sentence you as having had knowledge of the sawn-off shotgun carried by
Mr Trajanovski.  You clearly had knowledge of the baseball bat being carried by Mr Kelmendi.

37Although it was of short duration, it terrified the victim.  Mr Vu made an victim impact statement, Exhibit 2 on the plea.  In that statement, he speaks of his trauma and distress as a result of your offending.  He thought he was going to be murdered and he still feels unsafe in his own home.  He has become hypervigilant and worries about being able to protect his young family.

38Principles of general and specific deterrence come to the fore in the sentencing exercise.  That is to say, I must send a message to the community at large that such conduct will not be tolerated.  But also, I must send that same message to you, Mr Whittingham.

39On the plea, there was agreement as to sentencing purposes and agreement as to the important of the principles of parity and equality of justice.  Let me explain what I mean by that.

40I note that your co-accused, that is Mr Kelmendi and Mr Trajanovski, were sentenced by His Honour Judge Chettle on 19 August 2016 following pleas of guilty as follows.  For the aggravated burglary, five years' imprisonment and in respect of Mr Kelmendi alone, 12 months' imprisonment for the theft of the computers, of which six months was ordered to run cumulatively upon the sentence for the aggravated burglary.  Both were also sentenced for other offending on that occasion.

41This sentence was appealed and on 10 April 2017, the Court of Appeal affirmed the sentence in respect of Mr Kelmendi, although finding that the learned Judge had erred in imputing knowledge to him of the firearm carried by Mr Trajanovski.

42I sought submissions from the parties as to whether the found error of His Honour reopened my sentencing discretion.  The Court of Appeal had made clear in respect of Mr Kelmendi that even without knowledge of the firearm, he could have no complaint of the sentence imposed in light of his prior criminal history and in light of the objective gravity of the offending.

43Accordingly, principles of parity and equality of justice loom large and equality of justice is identified as requiring identity of outcome in cases that are relevantly identical and requiring different outcome in cases that are different in some relevant respect.

44Viewing of the CCTV footage, Exhibit 3, makes clear that you were a willing and active participant in the joint enterprise.  I find on the balance of probabilities that you were not a planner of the operation.  I accept on the balance of probabilities that you are easily led and apt to be recruited in the criminal enterprises of others.  I do feel able therefore, to distinguish the gravity of your offending to a certain extent from that of your co-offender, Mr Kelmendi.  The prosecution has very fairly conceded that this course is open to me, in their words, "to a slight degree", in further written submission that were supplied to the court on 18 October 2017.

45Mr Whittingham, I have regard to your early plea of guilty, which I accept was entered or was tendered at the committal mention stage.  I accept that this entitles you not only to a significant utilitarian benefit, that is, the trouble you have saved everyone and the cost you have saved everyone by a trial.  But in addition, Mr Whittingham, I accept it provides some evidence of your remorse for your offending.  That is to say that you are sorry for your offending.

46I also accept that you will have the support of Ms Kwon upon your release.  She is clearly a valuable person and an asset to you, and I regard that to some extent as a protective factor.  I also regard perhaps to a lesser extent as a protective factor, your expressed desire to reconnect and have a relationship with your young children.  As I have already said, Mr Whittingham, your future depends upon your ability to stop using drugs.

47I accept that you now express a desire to engage in treatment.  Your prospects at this stage for rehabilitation must be viewed in a very guarded light as those prospects are linked again inextricably to your being able to stop using drugs.

48In sentencing you, I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence.  I must deter others from behaving like you did and I must deter you from repeating such behaviour.  I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.

49I take into account the effect that your crime has had on your victim, Mr Vu and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence you have committed.  In short, I must try and balance your personal circumstances with the circumstances of your offending.

50Clearly principles of general deterrence and specific deterrence and denunciation are the primary sentencing considerations in this case.  I do give full effect to the migratory factors to which I have referred.

51Mr Whittingham, stand up please.  I sentence you as follows.

52On Charge 1, aggravated burglary, four years and six months' imprisonment.

53Charge 2, theft, 12 months' imprisonment.

54I order that six months of the sentence imposed on Charge 2 is to be cumulatively with a sentence imposed on Charge 1.  This results in an effective term of imprisonment of five years.

55I fix a non-parole period of three years and six months.

56Pursuant to 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, you would have been sentenced to a total term of imprisonment of seven years.

57Now this is why I look to counsel, Ms Parkes and Ms Ristivojevic. Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served ‑ ‑ ‑

58MS PARKES:  412 days, Your Honour.

59HIS HONOUR:  Thank you, Mr Parkes.  That's agreed, Ms Ristivojevic?

60MS RISTIVOJEVIC:  Yes.

61HIS HONOUR: I will start again. Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 412 days of the sentence that I imposed upon you and I direct that this be recorded into the records of the court.

62Before you are taken down, Mr Whittingham, if you just give me one moment.  Ms Ristivojevic, are there any particular custody management issues?  You can sit down, Mr Whittingham for now.

63MS RISTIVOJEVIC:  No, Your Honour.  He has been in custody for some time and he has been - or he wishes are being - making sure I can put it that way.  He is nothing (indistinct words).

64HIS HONOUR:  All right.  Mr Whittingham, I do want to say, you may - that is all right, you don't have to get up.  You may have realised that I put back this date of your sentence.  That was because I had other work to attend to.  But I apologise to you for that delay.  All right, Mr Whittingham?

65OFFENDER:  Yeah.

66HIS HONOUR:  Yes, he can be taken down.  Thank you.  Can I take both counsel for their assistance in this matter?  For the email because I was awaiting that.

67COUNSEL:  Thank, Your Honour.

68HIS HONOUR:  It is always nice to get an email that says, "Your Honour is right" effectively.

69MS PARKES:  Yes.

70HIS HONOUR:  And can I apologise to both of you for the delay.  I was doing a trial that involved a complainant and it was difficult to judge precisely where that would be.  But thank you for your understanding and your assistance.

71MS RISTIVOJEVIC:  Thank, Your Honour.

72MS PARKES:  As Your Honour pleases.

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