Director of Public Prosecutions v Willoughby
[2021] VCC 1372
•17 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-20-00166
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRITTNEY WILLOUGHBY |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June & 15 September 2021 | |
DATE OF SENTENCE: | 17 September 2021 | |
CASE MAY BE CITED AS: | DPP v Willoughby | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1372 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge burglary – one charge theft – one charge obtain property by deception – one charge negligently deal with proceeds of crime – deferral of sentence – youthful offender
Legislation Cited: Crimes Act 1958; Sentencing Act 1991,
Cases Cited:Worboyes v the Queen [2021] VSCA 169
Sentence: 18 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet | Office of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker – Accredited Criminal Law Specialist |
HER HONOUR:
1Brittney Willoughby, you have pleaded guilty to one charge of burglary, the maximum penalty for which is 10 years' imprisonment, one charge of dealing with proceeds of crime, the maximum penalty for which is five years imprisonment, one charge of obtaining property by deception, the maximum penalty for which is 10 years imprisonment and one charge of theft, the maximum penalty for which is 10 years imprisonment.
2
These charges were contained in an indictment that also charged your co-accused Mr Jake Castner and another man, Mr Timothy Cakebread. The Indictment contained a series of aggravated burglaries and thefts in the suburbs of Melbourne, which culminated in two separate car accidents involving Mr Castner and Mr Cakebread. They were sentenced on 1 September 2021. Your place in that Indictment ultimately involved your pleas of guilty to these four charges. In relation to Charges 4 and 5: burglary and theft, you were in the company of Mr Castner that day, though he has pleaded guilty to a different and more serious offence.
Mr Castner was also your co-accused on Charges 5 and 6 on the Indictment, being the theft and obtaining property by deception.
3At the original plea hearing on 8 June 2021, your counsel submitted that your sentence should be deferred pursuant to section 83A of the Sentencing Act to allow you some time to provide evidence of your progress under a supervised youth bail program. Originally your case was adjourned to 4 October 2021, however that date was brought forward because of your personal circumstances.
Circumstances of offending
4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea, dated 6 June 2021. That opening was tendered on the original plea hearing and marked as Exhibit C; it is attached to and forms part of these reasons. I will summarise aspects of your offending here.
Charges 4 and 5: burglary and theft
5On 29 July 2019 you, Ms Willoughby, were in the company of Mr Castner. At about 5 am, you went to a private house on Bulleen Road. The victims, Hasan Ibrahim and Wajeeha Khan lived there with their six year old daughter.
6Mr Castner forced entry into their house with a jemmy, or similar tool, while you, Ms Willoughby, stayed in the car. This gives rise to Charge 4: burglary.
7At this house, while you waited for him in the car, Mr Castner stole a range of valuable property including a car, computers, sunglasses, wallet, identity cards and other items (these are listed on Schedule A of the indictment). This gives rise to Charge 5: theft
Charge 6: obtaining property by deception
8Later the same day same day you with Mr Castner went to a Woolworths in Ashburton. You used a credit card stolen from the Bulleen Road house to buy drinks, cigarettes and gift cards in three separate transactions to the value of $256.20. This gives rise to Charge 6: obtaining property by deception.
Charge 17: negligently dealing with the proceeds of crime
9On 31 July 2019 investigating Police went to your house in Sebastopol. There, in a car (not the car taken from the Bulleen Road house, but a car the subject of a different charge), they found a large quantity of stolen property that was identified as belonging to a victim of an offence committed at the home of a Ms Kiriazis, by one of your co-accused. You are not alleged to have been involved in the offending at her house, but the recovered property belonging to Ms Kiriasiz, (that is listed in Schedule B of the Indictment), was found in the car in the garage at your place.
Interview and arrest
10On 31 July 2019 you were interviewed by Police and you exercised your right to silence. You declined an invitation to participate in a further record of interview on 8 August 2019.
11On that date, 8 August 2019, until the date of a grant of bail on 2 October 2019, you remained in custody.
Procedural chronology
12Your offending took place between 29 and 31 July 2019. Shortly after the grant of bail in 2 October 2019, a committal case conference was conducted in the Magistrates’ Court. A committal hearing was conducted on 4 February 2020, and, after a series of directions hearings and a section 198B hearing in this court in relation to phone tower evidence, your case resolved to the plea of guilty now before me.
Criminal history
13A criminal history was filed in this case. It refers to five court appearances, all of them in the Children’s Court dating back to 2016. While the nature of the offences recorded there are relevant, I note that these were all offences committed by you as a child and you were sentenced as a child. They include charges of theft, unlawful assault, and an aggravated burglary. You were variously sentenced to good behaviour bonds or, in one case, a fine. I take them into account to a very limited degree; you have no prior convictions in adult court.
Nature and gravity of the offending
14I have to address the nature and gravity of your offending.
15The offending on Charges 4 and 5 is the most serious. It involved entry to a private home; a significant amount of property was stolen, it was valuable, and included a car. Importantly, however your role is acknowledged as significantly lower than that of your co-accused. You stayed in the car and ultimately your charge is one of burglary. I find that the offence as it pertains to you falls in the lower end of the scale of similar offending.
16Both Defence and Prosecution agreed that it is appropriate for me to find that you were not the driving force of that offending; you were not an equal participant with your co-accused. I note that the charge of negligently dealing with proceeds of crime did involve valuable property, but your involvement was essentially passive.
17Nevertheless, your offending did involve some participation. I note again that you remained in the car, but the burglary, to which you plead guilty, involved the deliberate violation of the privacy and security of the home of the family at the Bulleen address. That’s unacceptable conduct and conduct that the community does not tolerate.
Impact statements
18I must have regard to the effect on the victims of your offending. No victim impact statement was filed by the family whose house was the subject of the burglary. Ms Kiriazis filed a Victim Impact Statement but it pertains mostly to the entry to her premises and has little bearing on the sentencing in your particular case. Although I have not heard from the victims of the burglary I am confident in saying that they felt disturbed and unsafe as a result of knowing that their house had been entered while they slept.
Personal circumstances
19You were 18 years old at the time of this offending. You are 20 now. You have continued to reside at your family’s home more recently.
20Your father is currently unemployed and your stepmother who has five children, is currently living with you both.
21You left school at only Year 7 level.
22Your birth mother and father separated when you were 3 years old and you were then put in foster care until the age of 8. Your mother had your care from 8 to 11 years old and I am told that this period was ‘a disaster’.
23From 11 years old you went into your father’s care. You have a close relationship with your stepmother.
24Currently, there are 11 people living in your family's home. You are now expecting a child of your own in December and you have been accepting assistance to obtain your own housing in anticipation of that time.
25You have previously presented as a very young person with problems of addiction; you have recently undergone residential treatment at the Youth Substance Abuse Service in Geelong, which you completed successfully.
Matters in mitigation
Plea
26I note that these pleas of guilty are to lesser charges than you originally faced, so while it is not quite accurate to characterise your plea as ‘early’ I do accept that this is a plea at an appropriate stage when negotiations presented you with the opportunity to resolve your case.
27The Indictment filed in this case originally listed 48 witnesses the Prosecution intended to call at trial. Initially, the phone tower evidence in the trial was the subject of challenge and of some preliminary cross examination. Applications to exclude parts of that evidence were foreshadowed. The acts giving rise to these offences, in context with the offences of your co-accused, extended over a number of days and locations so the trial that did not take place would have involved lengthy and complex pre-trial argument and rulings. All this leads me to the conclusion that the plea of guilty in your case, at any time, would be extremely valuable, but at this time, when the courts of the state are severely congested and there are unacceptable delays in the resolution of trials, it is my obligation to treat your plea of guilty as particularly valuable and to pass this on in the form of ‘an actual and palpable amelioration of your sentences.’[1]
[1]Worboyes v the Queen [2021] VSCA, at 169 per Priest Kaye And T Forrest JJA at [35].
Remorse and facilitation of justice
28Moreover, notwithstanding that you did not necessarily make admissions early on, I accept that your plea has within it an aspect of remorse.
Youth
29You are now only 20 years old, and only 18 at the time you committed these offences. The community has a long-term interest in your rehabilitation. The principles that apply to sentencing youthful offenders apply to you. That means I must sentence you in a way that gives a special emphasis to your rehabilitation.
Progress on youth bail
30You have been on bail since 4 March 2021 and on your Plea I received a bail progress report dated 14 September 2021. I have taken the whole contents of that report into account, and in particular I have noticed that you have participated in ongoing treatment with the Youth Substance Abuse Service (YSAS). They have assessed you at this stage as being quite a low risk of relapse.
31Further, you participated in a range of programs, the details of which are contained in the report compiled by Mr Jordan Austin. You have commenced a treating relationship with a counselling psychologist and have another appointment with them scheduled in future. Your success in grappling with your addiction had the flow on effect of improving your relationships with your family.
32You have recently become eligible for a six-month tenancy managed by the ‘Better Futures’ program and this has had the effect of reducing your anxiety and stress about not having your own space in the lead up to the birth of your baby. It is noted that you’ve been abstinent from substance use since exiting the residential detoxification program at the YSAS in May 2021.
33I note that Ms Hastings, who has been supporting you through the ‘Better Futures' program is quoted in the report compiled by Mr Austin and says that:
“ ..there are no current concerns with Ms Willoughby’s pregnancy, health, substance use or offending and has demonstrated motivation and commitment to making changes in her life…”
34This hearing was brought forward so that you could enter the housing program given that they would not accept someone who was currently on bail.
35On the deferral of your sentence, I set out for you some specific goals: to engage with the Youth Justice workers, continue to engage with the Youth Substance Abuse Service, attend the ‘bubs and mums’ program and see a psychologist. I am satisfied that you have done each of those things, subject to some variation where some services were not available. That, on top of your participation in the residential detox program I have already referred to, should give you some confidence, as it does me, that when you apply yourself you can succeed in addressing your problems.
36You have now demonstrated that you can grapple with your addiction and other issues that you face. Taking into account the whole Youth Justice Report and the fact that you maintain your family support, I find that, if you continue to take advantage of those supports, your prospects of rehabilitation are very, very good.
Sentencing principles
37There is a role for just punishment and denunciation in this sentence. You need to appreciate, Ms Willoughby, that the community takes very seriously offences against people’s privacy and sense of safety at home. General and specific deterrence are relevant in the sentencing process, however given your age and the state of your rehabilitation today, I regard the role for facilitating rehabilitation in this sentence to be paramount. But for your demonstrated rehabilitation, and my obligation to give it special status in this sentence, it is likely you would have had to serve a further term in custody.
Parity
38As I have already said, I sentenced your co-accused Mr Castner and another man, Mr Cakebread, on 1 September 2021. I have turned my mind to questions of parity that might arise in relation to those sentences, but you are quite unlike either of those two accused. There is significant disparity between you and them on almost every index.
Disposition
39Prior to sentencing you I ordered a report, pursuant to s8B of the Sentencing Act 1991, and you were found to be a low risk of reoffending and suitable for a Community Corrections Order.
40On Charge 4: burglary, Charge 5: theft, Charge 6: obtaining property by deception and 17: negligently dealing with proceeds of crime, you are convicted and sentenced to Community Corrections Order of 18 months.
41Pursuant to section 40 of the Sentencing Act 1991, I make one Community Corrections Order in respect of each of the offences.
42I note for the record that you spent 58 days in custody on these matters, but I do not declare it as part of this sentence.
Community Corrections Order
43Ms Willoughby, I am putting you on a Community Corrections Order for 18 months.
44You will be first subject to the standard conditions of a Community Corrections Order, that means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 18 month period. I should be clear about this, if you did commit new offences, you would be brought back to court before me and resentenced for these offences and obviously dealt with for any new offending, wherever that would turn up. Absent very powerful reasons, you would probably need to expect that that might involve your imprisonment.
45You must report to the Ballarat Community Correction Service within two working days of today by telephone.
46You are required to advise your supervisor in the Corrections Office of any change of address, so when you move into your new place, or where you are working and you must do so within two clear working days.
47It is a term of all Community Correction Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer. You are not to leave the State of Victoria without their permission and that is for the entire 18 months.
Special conditions
48There are some special conditions that I am going to attach to your order. You will be required to complete programs, if directed, to further address your drug and alcohol use.
49You must report for supervision with your case manager as required.
50You must submit to assessment and treatment for alcohol and drug dependence.
51I also require you to participate in judicial monitoring. That means you have to come back to court from time to time and appear before me and I get a report about how you are going on your CCO.
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