Director of Public Prosecutions v Whitton

[2022] VCC 2119

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00913

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYREECE WHITTON

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JUDGE:

HER HONOUR JUDGE  HAMPEL

WHERE HELD:

Mildura, Melbourne

DATE OF HEARING:

16 March 2022 (Mildura)

DATE OF SENTENCE:

16 September 2022 (Accused failed to appear)

05 October 2022 (Accused failed to appear)

12 October 2022 (Accused failed to appear)

30 November 2022

CASE MAY BE CITED AS:

DPP v Whitton

MEDIUM NEUTRAL CITATION:

[2022] VCC 2119

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – guilty plea – home invasion – theft – fail to appear on bail – intergenerational trauma - exposure to violence and substance abuse in childhood – substantial and compelling circumstances made out – koori court

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:            DPP v Herrmann [2021] VSCA 160

Sentence:                3 months’ imprisonment, 3 month adjourned undertaking

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire (16/03/22, 16/09/22, 05/10/22, 12/10/22) Mr A. Cecil (30/11/2022)	Office of Public Prosecutions
For the Accused	Mr T. Battersby	Martin Middleton Oates

HER HONOUR:

1Tyreece Whitton, you have pleaded guilty to one charge of home invasion, and two charges of theft.  You have also pleaded guilty to one charge of fail to answer bail.  The maximum penalty for home invasion is 25 years' imprisonment, for  theft is 10 years' imprisonment, and for fail to answer bail, three months imprisonment.

2The circumstances of the home invasion and the theft are these.  At about 2 am on 8 March 2019, you and two other young men or boys were walking around a residential area of Mildura.  You were 19 at the time.  One of your companions was a 16-year-old who was at the time in the care of the Department of Health and Human Services, as you had been yourself until the age of 18.  The identity of the third person remains unknown.

3You remained on the street while the other two took a garage remote from an unlocked car parked in the driveway of a house in Alfred Close and used it to open the garage door.  They then entered the garage and took keys and personal items from the unlocked cars in the garage.

4One of the occupants was dozing on the sofa.  Her husband, who was not well, was asleep in bed.  She woke from the sofa to realise someone was in the house; she was obviously frightened.  She heard noises and called out and the intruders ran away.  She saw two, possibly three silhouettes.  

5She soon realised that the intruders had gained access to the house through the garage and had taken items both from the garage, the cars in it, and the kitchen.  Keys, a wallet, cards and glasses were taken from the cars in the garage. Laptops, an iPad, a watch, and speakers were taken from the house.

6A later investigation showed your fingerprints on one of the cars in the garage, and the 16 year old boy's fingerprints were detected on the two cars.

7You were interviewed some months later, in July 2019.  Whilst acknowledging that you were there, you said that you were keeping a lookout.  You did acknowledge that you entered the garage, and that you left the premises with an iPad, but denied actually going into the house.

8It is that conduct that now brings you before this court to be sentenced, more than three years, nearly four years later for a charge of home invasion, and two charges of theft.  Those charges are broken into two because one relates to the taking of the remote that allowed access to the house, the other relates to taking the items from the cars, the garage, and the kitchen.  Although the offence of theft is complete as a matter of law once the items are stolen or taken, it is of note that most of the items that were taken from the house were dumped by one or more of you as you left, and they were able therefore to be restored, undamaged, to the owners.  The only items not recovered were one set of car keys, the iPad, a watch, and the sound system, which had a combined value, excluding the car keys, of almost $2,000.

9It was not, as I said, until four months later that you were interviewed, and that came about because you had been arrested for a breach of an intervention order protecting your former partner.  You were then interviewed about this as well because of the fingerprint match.  Police noted that in your interview, you were very shy and quiet, giving only very short answers to questions.  You were, however, forthcoming.  You explained that you saw your role in the incident as one of lookout for the 16-year-old, that you were going to warn him if a car came along.  You admitted going in through the garage and taking the iPad.  When you were asked what you received from the burglary, you said 'nothing, and you noted that you left the house because the co-offenders came 'bolting through the door', so you followed.

10

In common with many offenders (not only young ones) but also older people, your understanding that you could be criminally responsible for the acts of your

co-offenders meant that it took a long time for these charges to be resolved and for you to understand that at law, you bore criminal responsibility for the conduct of the others as well as yourself.  So, that is one of the reasons why it took so long for these charges to come before this court ultimately in March of this year. But you also failed to answer bail for some time, and that was another reason why it has taken so long for these matters to be dealt with.  And that is also why you come to be sentenced for one charge of fail to answer bail today, as well as the substantive charges.

11Of the two co-offenders, only the 16-year-old has been identified and he was dealt with back in June 2019.  He was sentenced in the Children's Court to 92 days detention in youth detention,  the equivalent of the amount of time that he had by then spent in youth detention on remand. 

12Home invasion is a category 2 offence. That means that from October 2018 (that is less than six months after this offence), that any offender over the age of 18 who is guilty of committing the offence must be sentenced to a term of imprisonment unless they fall within one of the exceptions set out in s5(2H)(a) to (e) of the Sentencing Act.  The two theft charges, without devaluing their seriousness or the impact on the victims, would normally be dealt with in the Magistrates' Court.  They are only in this court because they are connected with the home invasion charge.  And if they had been dealt with in the Magistrates' Court, the maximum term of imprisonment for each charge of theft would have been two years. That is something that is relevant in assessing the sentence. 

13It is clear not only by the maximum sentence Parliament has prescribed for home invasion, but also its classification as a category 2 offence, that home invasion is regarded as a serious offence, and rightly so.  Our homes are our private places.  People should not enter unless they are invited.  And of course, our possessions are our own, to use as we please, to store or instal or leave around where we please in our homes.  But they are ours to keep for our own use.  They are not communal property, available to anyone to help themselves to.  And there is a particular sense of violation that people feel when their house is entered by someone who comes in uninvited, invading their private space, looking over their possessions, and helping themselves to what is not theirs, to whatever takes their fancy.  And that is why you come to be punished for this and why it is regarded as serious. 

14Ms Lever, the female occupant of the house, in her victim impact statement not only referred to the effect on her because of the impact on her unwell husband, but also said:

I feel so sad and even though (thank goodness) we weren't physically hurt - so violated.

And that is what I was trying to convey in what I said.

15So, it is clear the behaviour in entering people's homes, particularly at night when it is likely that people are going to be home, looking for things to steal and stealing what takes your fancy is bad.  It has to be denounced and it has to be punished. 

16Having said that, it is also clear that there are features of this particular home invasion that place it at the lower end of the scale of objective gravity.  This is not to devalue its seriousness or the impact on the occupants, but to place it in the context of the range of ways in which this type of offence can occur. 

17I accept on the material before you that both the decision of the others to enter the house and the selection of the items to steal were impulsive, not planned.  The purpose in entering was petty theft, not vengeance, threats, violence, or property damage, which would place this into a much higher category of offending.  Although it was reasonable to assume that the occupants would be home and asleep, it would appear that you and your co-offenders, if any of you thought about it at all, had assumed the occupants would remain asleep, not know what was happening and not be frightened.  Indeed, the reaction in running away as soon  as the woman clapped her hands and called out, dumping the most valuable items as you all left, points strongly to that conclusion.  It is also relevant that no damage was done to the house in entering it or to its contents.  Had this been a trespass into a house you knew or believed was unoccupied, with intent to steal, a burglary, it would have been dealt within the Magistrates' Court and, like the theft charges, would have been subject to a maximum of two years' imprisonment.

18So, I take those matters into account, and I also look at the matters that are personal to you which are relevant to sentence, and which operate and mitigate the way that would otherwise have to be given to denunciation, deterrence, and punishment.  And there are a considerable number of them.

19First is your plea of guilty.  It was a relatively early plea entered after you were ultimately found after you failed to answer your bail in the Magistrates' Court. That is particularly significant because of the consequences of sentencing for an offence of home invasion, and the fact that you were the lookout rather than one of the ones who initially entered.  Also significant is the reduction in sentences due to pleas entered during the COVID-19 pandemic and their significance in reducing the delay for other cases waiting to go to trial. The courts have made it very clear that must be recognised in a significant reduction of sentence.

20Second, you elected to have these matters dealt with in the County Koori Court. That is not an easy option.  It is very clear that can be a very confronting experience.  My observations, as I sat in that courtroom in Mildura, as you sat there not able to lift your head, barely having the courage to speak, to open your mouth and speak at a volume any of us could hear, as the elders and respected persons  slowly built up some sort of rapport and trust with you, showed that this was indeed a very difficult thing for you. You approached them with some trepidation, but with a genuine attempt to be able to listen to what they had to say to you about why what you did was wrong, to hear the encouragement for you to be your better self and to encourage you to understand you had the capacity to do it.  It was a very tough option and it deserves significant reduction in penalty for you. Not only for your participation on that day in the way that you were ultimately prepared to open up and to speak to the elders  and respected persons, to acknowledge the pain that you have been carrying for so long, but also to then commit yourself to an extended period of bail and deferred sentence to undergo some intensive work to help yourself be able to fulfil your potential.  So, your sentence deserves significant reduction because of that.

21The third matter relied on was your youth. You were only 19 at the time and a very young 19-year-old.  Part of my frustration at your inability to commit to coming to court when you were supposed to for the return dates is again a reflection not just of your relative youth even now, but your immaturity.   The law makes it very clear that young offenders, as you properly are still to be regarded, must be treated as people for whom rehabilitation is encouraged, particularly if they have taken active steps to work on their own rehabilitation. Rehabilitation must be given prominence and a greater weight than punishment or deterrence. 

22The fourth is your role.  I accept although you were older than the 16-year-old who has been dealt with, you were clearly not the instigator, but a follower. 

23The fifth is the fact that, as I have already indicated, the objective gravity of the offending is at the low end of the scale.  As the prosecution acknowledged too, it lacked pre-meditation, it was of a short duration, there was no threat to or confrontation with the victims.

24Next, you come before court as person who, at the time of this offence, had no previous convictions.  You have what I call a spotty history.  You had some charges pending, and you have had some others laid and dealt with between the time of this offence and the sentencing today.  But you are properly entitled to be treated for sentencing purposes as a first offender because you had no priors at the time, and you are properly also able to be treated as somebody who although having had a number of encounters with the law, has shown a determined and persistent capacity to turn into a person who is no longer offending.  And therefore, I can say, despite the fact that there are subsequent matters, that you have nonetheless shown on balance your path to rehabilitation is assured.  So, you must get the credit for that. 

25Most importantly, given the circumstance of your challenging background and upbringing, the absence of any previous convictions up to the age of 19 is in itself evidence that shows what a remarkable young man you have been and have the potential to continue to be. 

26The next matter then is  your personal circumstances and the application of the  principles about the weight that must be given to a person who has grown up in circumstances of considerable deprivation and disadvantage, and who is a First Nations person who has suffered directly, the terrible impacts of the intergenerational impacts of displacement and removal from family. 

27You are a Yorta and Wurundjeri man. You were born in the Mildura area to parents who come from that area.  Your story and that of your parents is sadly one that shows the impact of intergenerational trauma on First Nations people.  Substance abuse and violence blighted the lives of both of your parents, marred their relationship with each other, and their relationships with their children.  Your parents were, because of what had happened to them and to their forebears, ill-equipped to care for themselves and even less well equipped to care for their children.  You were born prematurely, and you needed special care when you were born.  When you were only two weeks old, you had been released from hospital with your mother, but police found you covered in her blood after your father had assaulted her when you were at this tender age of two weeks.  

28Before you were three months old, a protection order had been made, placing you notionally under the care of the Secretary until you were aged 16.  For some time you remained with your mother or your grandmother, but it is clear they were not able to care for you as well as they would have liked or you should have been cared for.  By the age of three months, you were again hospitalised, the reason apparently recorded as failure to thrive, in other words, neglect or an ability to understand your needs and properly care for them.

29Your parents separated not long after your birth.  You had little contact with your father then until you were 18.  Your mother went on to form other relationships and they too were blighted by violence and substance abuse.  You continued to be exposed to her being exposed to violence and violence was meted out to you as well.  By the time you were two, you had been placed with foster carers when your mother went into in rehabilitation in South Australia.  That meant you were separated not only from her but also from your siblings; they went elsewhere.  You were five before you were reunified with your mother and siblings, this time across the border in New South Wales.  By seven, things were again not working well for your mother, and again you were separated from her and your siblings. You remained in foster or kinship care in New South Wales until you completed Year 10.

30You were only 15 then, and you came back to Victoria and went to live with your grandmother in Robinvale.

31And by that time, not surprisingly, given that history, you were already using cannabis, and soon after that began to use methamphetamine. That was the pattern of your life from your return at 15 until 19 when you were charged with these offences. 

32After being charged, you moved to Melbourne.  That, it would appear, was an attempt to make a fresh start, get away from what you recognised as bad influences, although the only family connections that you knew were up Mildura way.

33In Melbourne, you formed a relationship of your own with a young woman, and by the time you were 20, you yourself had become a father.  That son has become the strongest motivator for you to reform your life.

34Although moving to Melbourne was motivated by a desire to make a fresh start, that itself brought  up further problems.  Although your life in and around the Mildura area had been unstable, fragmented, and your connection with family friends and community had been disrupted, at least they were there; in Melbourne you had no one.  You had had little in the way of positive exposure to domestic relationships and parenthood.  And therefore, your ability to navigate a mature relationship with your partner and to understand the needs of caring for a little child were limited.  And although you were easily able, for a short time at least, to avoid the consequences of failing to answer your bail in respect to these charges, it all caught up with you. 

35But that meant it was at least 18 months after being questioned (and two years after the break in) before you walked into Dandenong police station and surrendered yourself into custody for failure to answer bail on these charges.  You spent six weeks in custody before you were released on bail.  You then had eight months out on bail before you were remanded for further offences.  And some of that time on remand was attributable to the further offences, but some of it was time attributable to remand in respect of these charges.  You have spent a considerable time in custody, of which 134 days is available to be counted as pre-sentence detention in respect of these charges

36At committal, you pleaded guilty to the substantive charges.  You were committed to the County Court and then, as I have noted, applied to have the matter heard in the County Koori Court.  You were again granted bail, but in November 2021, you failed to appear at the County Court in accordance with your undertaking, and you were ultimately arrested and remanded again.  That then deals with the circumstances of your failure to answer bail and the different periods you have spent in custody attributable to this. 

37On the plea, in addition to your participation in that very, very emotionally powerful sentencing conversation, I also had the benefit of the very powerful testimonials of character references from brother, Djerindi, and your sister, Tamika.  They, like you, have extraordinary resilience despite the very difficult circumstances of your childhood upbringing, and they speak beautifully of you as a person who, when not offending, is such a good person with so much promise.  It is a delight to see how much you are able to fulfil that promise and to show not just them, but the broader community what you are capable of doing, that you now have some confidence in yourself, and to see yourself now as a good person and someone with a hopeful future. 

38All of that was too borne out and supported by the report of forensic psychologist Carla Ferrari.  She reported on your difficult and traumatic childhood, gave expert opinion about the impact of institutionalisation, the links to substance abuse, negative feelings of self-worth, disengagement and defeatism.  Your DHHS records confirm that the violence that you had reported suffering at the hands of your father and your mother's subsequent partners and the severity of that, and detailed the hospitalisations, medical attention, and police involvements that had peppered your life.  They also confirmed the indications of neglect and substance use on your mother's part, and the resultant history on your part of social anxiety, difficulty in talking to others, how easily you became overwhelmed and struggled to express yourself.

39Given what is now known of the enduring effect of intergenerational trauma experienced by too many first nations people, I accept, without qualification, the evidence of the effect of your experiences early in life, and your continuing effect of them on your ability to cope both in the community and in custody.  As the Court of Appeal recently said in the case of Hermann, helpfully quoted to me by
Mr Battersby in his submissions,[1]

[these] are more than matters of historical significance to the administration of justice… though they don't provide an excuse for offending behaviour, but they must be given due weight in the sentencing calculus.

[1] DPP v Herrmann [2021] VSCA 160 (Maxwell P, Kaye, Niall, T Forrest and Emerton JA),

citing Marrah v the Queen [2014] VSCA 119, [16].

40I accept for all these reasons that general deterrence must be significantly moderated.  

41Given your engagement in Koori County Court, the reports that were presented at the time I was considering sentence deferral and your remarkable progress during the period of sentence deferral, your continued engagement and attempts to navigate new ways of engaging with people who are prepared to offer you help, supportive, understanding and culturally sensitive help, this sentence must give significant weight to encouraging and promoting rehabilitation. That is, your capacity to rehabilitate, based on and acknowledging the significant rehabilitation you have already undertaken.

42By the time of the sentencing conversation, you had been assessed and accepted to participate in the 16-week Ngarra Jarranounith Men's Family Violence and Behaviour Change Program run by Dardi Munwurro.. 

43I agreed to bail you to live at Dardi Munwurro but you were not well enough to be able to go straight there.  After I made the bail orders, you were supposed to be returned to Melbourne and then taken straight to Dardi Munwurro.  You suffered a significant downturn in your mental health and ended up spending two weeks at Thomas Embling being treated, medicated, and monitored so that you were going to be safe to yourself and others, and well enough for a release.   Your mental health has been carefully monitored ever since and you have made considerable progress. Not only in your mental health itself, but in understanding that you need help, where you can go to reach out for help, and the importance of talking about and, when necessary, taking medication appropriately to assist you on that. 

44So, you came before me on two separate occasions for monitoring and review during that period of deferral and whilst you were living at Dardi Munwurro.  It was clear that you made significant progress, engaged very well with the elders there, and were accepting the assistance that was provided to you to reunite with your partner and your son. 

45There was an intervention order that was in operation initially but that expired by June, and you were able to then, first with supervision and support, and then on your own re-engage with your partner and son. 

46By the time of the second mention, you were almost towards the end of the program and plans were being made for you to transition to private accommodation to be built by Dardi Munwurro in the Reservoir area, and you were going to commence employment in building of that accommodation.  By the second return, you had resumed visits with your son on most weekends and were very positive about forging a positive future with him and being a positive role model.  At that stage, things were looking very good and it was hopeful that I would be able to complete the plea and sentence you in September. 

47On the return date you did not appear.  You had successfully completed Dardi Munwurro program, you had exited the program, but there were delays in the commencement of the building project and you ended up leaving there and going back to try and reunite and live again with your partner and her child.  Things overwhelmed you, you did not turn up to court, the relationship, though promising, was not working very well.  There had been a number of attempts between September and today to ensure that you had stable accommodation, that you were navigating a way through to re-establish a relationship with your partner, whether you were to live with her or not, and to continue contact with your son. 

48On a number of occasions, you did not attend court when you were supposed to and you were unable easily to be contacted by your lawyers and those supporting you.  But to your credit, although you were clearly struggling, you have managed each time to re-establish contact.  You have not had a significant relapse in your mental health.  And more importantly, you have not been charged with further offences or relapsed into substance abuse.  So, you are not posing a risk to yourself or others, and you have shown that even when there are setbacks, you have been able to keep things going and do well rather than, as you had in the past, feel defeated and act badly in order to demonstrate that you are worthless.  You have shown you are not, and you are capable of better. 

49So, it is we come to today.  You now have, it would appear, stable accommodation in the Mildura area.  You have re-established a relationship with your partner and you are working through how that is going to work.  And although your son is not in the custody of you or your partner, you are in regular contact with him and working constructively with those others who are taking responsibility for his welfare to make sure he is safe, not exposed to the violence and trauma that you were exposed to as a young man but prioritising his needs and interests over your own.  That speaks remarkably for the journey that you have been on. 

50You have also matured.  You were a 19-year-old at the time of offending, you are now 22.  Although, as I said in some ways still immature, that is a period of considerable emotional maturity over the time. 

51I was very impressed when Mr Hammersley from Dardi Munwurro said,

Tyreese did extremely well in our program going from a young man who couldn't hardly speak to a man who stood tall spoke clearly and proud and set examples to the older men.' 

And you have continued to show that. 

52It is not surprising that having regard to all of that the prosecution, after consideration of all the evidence and the somewhat rocky path this has had, ultimately acknowledged that it was open to me to find that substantial and compelling circumstances that are exceptional and rare had made out for purposes of s5(2H)(e)[2], so as to open all sentencing options to me for the charge of home invasion. 

[2] Sentencing Act 1991 (Vic), s 5(2H)(e).

53As I have already discussed with Mr Battersby and Mr Cecil, if you had not already served time on remand for these offences, and given the progress that you have made since you were released on bail during the period of deferral, I would not have imposed a sentence of imprisonment on you, but I would have imposed a community correction order, having a hold over you for a considerable period to assist you with rehabilitation and to supervise you and to serve the punitive purposes.  

54But your progress, in particular since the deferral, must be recognised and, in my view, should be reflected in the sentence.  The time at Dardi Munwurro, as I said, has subjected you to stricter supervision and more intensive work on your rehabilitation than even a carefully tailored community correction order imposed now would be able to do. The sentence therefore must acknowledge that and build on that.  The progress since leaving Dardi Munwurro shows that you have indeed benefited from the coping skills that you learnt there and that they are encouraging you to learn, and demonstrates that you are able to manage rehabilitation now with a much less structured support system around you, and that too should be reflected in the sentence. 

55Given time served and your progress, I consider the appropriate sentence, on the charge of home invasion, a term of imprisonment of three months, less than the time served.  And on the other charges, the two thefts and the fail to answer bail, an adjourned undertaking for three months, on the condition that you be of good behaviour and that you engage with and abide by all lawful directions of the Mallee District Aboriginal Service (MDAS). 

56Are you prepared, Mr Whitton, to promise to be of good behaviour and to engage with and abide by all lawful directions of MDAS for the next three months?

57OFFENDER:  Yes.

58HER HONOUR:  All right.  Then let me formally sentence you.

59Tyreece Whitton, on the three indictable charges and the one related summary offence to which you have pleaded guilty, you are convicted:

(a)   Charge 2 home invasion, you are sentenced to  imprisonment for a period of three months.  I declare that you have spent 134 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already imposed.

(b)   Charges 1, 3, and the related summary offence of fail to appear on bail, Charges 1 and 3 being the charges of theft, you are to be placed on an adjourned undertaking for a period of three months, to be of good behaviour and to engage with and abide by all lawful directions of Mallee District Aboriginal Service. 

60I declare pursuant to s6AAA of the Sentence Act, that had you not pleaded guilty, I would have sentenced you to a total effective sentence of six months' imprisonment on all charges.  Are there any further orders that are required to be made?  And do the orders that I have announced correctly reflect what I said I intended to do?

61MR BATTERSBY:  Your Honour, nothing further from my perspective.

62HER HONOUR:  Mr Cecil?

63MR CECIL:  Nor mine, Your Honour.

64HER HONOUR:  All right, thank you.  Because this is a remote hearing, Mr Whitton, I am not going to present you with a document  of the undertaking or promise to be of good behaviour for three months, but the record of this hearing will show that I have told you what the conditions are and that you have acknowledged and made your promise to be of good behaviour.   The fact the document has not been signed by you does not mean anything, you are bound by your promise from this moment on; do you understand that?

65OFFENDER:  Yes.

66

HER HONOUR:  Yes.  Good.  I am going to have a copy of that undertaking sent to Mr Battersby and he will make sure that is sent on and provided to you.  But that means that provided you continue with the progress that you have made,

Mr Whitton, you stay out of trouble, do not get charged with any further offences.  By February of next year, your adjourned undertaking expires, and this will be behind you. 

67OFFENDER:  Yeah.

68HER HONOUR:  And given the progress you have made and the promise that everybody sees you have, I look forward to seeing you some time in the future in court supporting other troubled young men who have felt at times that life was too hard for them, but to show then that you can always overcome those problems and you can become the person you want to be.  That your past is there, you cannot turn it back, but it does not have to define your present or your future.  You are a living example of that.  You should be very proud of what you have done to date, and I hope that we do not see you before the court again except as a person supporting other people in trouble. 

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