Director of Public Prosecutions v Wolfe
[2024] VCC 940
•26 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00755
CR-23-00754
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOWEN, Matthew |
| WOLFE, Corey |
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JUDGE: | Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2024 and 19 June 2024 | |
DATE OF SENTENCE: | 26 June 2024 | |
CASE MAY BE CITED AS: | DPP v Wolfe & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 940 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -
Catchwords: Burglary – theft – arson – bail offences – prohibited person possess imitation firearm – general deterrence – specific and community protection important with priors – brazen offending – invasive theft – impact upon victims – early plea – drug addiction – intellectual disability
Legislation Cited: Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Bail Act 1977 (Vic)
Cases Cited: Elakkoumi v DPP [2017] VSCA 186; Benkic v The Queen [2019] VSCA 34; Simpson v The Queen [2019] VSCA 82; Kulafi v The Queen; Nugyen v The Queen [2021] VSCA 369; and Sweeney v The King [2023] VSCA 9; DPP v Carter [2020] VCC 1757; DPP v Savage [2024] VCC 687; Bugmy v The Queen(2013) 249 CLR 571; R v Verdins (2007) 169 A Crim R 581; R v McKee; R v Brooks (2003) 138 A Crim R 88; R v Mills [(1998) 4 VR 235; Azzopardi v The Queen 2011) A Crim R 369---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Francesca Holmes | Office of Public Prosecutions |
| For the Accused (Wolfe) | Ms Jessica Willard | Papa Huges Lawyers |
| For the Accused (Bowen) | Mr Tim Glass | Valos Black & Associates |
HIS HONOUR:
Circumstances of offending[1]
[1] A more detailed description of this offending is set out in the Summary of Prosecution Opening for Plea (12 July 2023).
Corey Wolfe and Matthew Bowen, on 12 August 2022 shortly after midday, you and two other offenders travelled in two vehicles and parked in Sherwood Drive, Thomastown, near the corner with Harley Court.
At around 12.05 pm, Nazih Chaarani, who lived with his wife Iman at Harley Court, left with his son-in-law to go to a mosque in Broadmeadows. At around 12.15 pm, Mrs Chaarani also left the home.
Once everyone had left the Chaarani home, you and your two co-offenders forced your way in (Charge 1, Burglary).
At around 1.15 pm, Mr Chaarani and his son-in-law returned. When they entered the home, they found it had been ransacked, with drawers and cupboards open and their contents upturned.
Two safes had been taken as well many other items of both monetary and sentimental value (Charge 2, theft). The stolen items included:
a.$100,000 in cash in one of the safes;
b.$12,000 in cash that Mrs Chaarani had received from a community savings program in the Lebanese community; and
c.Jewellery and valuables which other members of the family had entrusted to Mr and Mrs Chaarani for safe keeping.
The total value of the items you stole was approximately $200,000.
One of the vehicles used in the theft was a Nissan X-Trail. You, Mr Bowen, had borrowed this car from Jason Hendy. When Mr Hendy asked for the return of his car, you taunted him by text message, before setting the car on fire on 15 August and completely destroying it (Charge 4, Arson).
At the time of this offending Mr Wolfe, you were on bail. You breached your bail both by committing these offences, and in a number of other ways (Summary Charges 4, 5, 7, 9, 10, 11). When police executed a warrant to search your property they located an imitation firearm (Charge 3, Prohibited Person Possess Firearm).
Impact on Mr and Mrs Chaarani
Your crimes have had a terrible impact on Mr and Mrs Chaarani.
Mr Chaarani says he has lost all of his happiness, his feelings and his emotions. He feels numb. At other times, he feels scared, frustrated and nervous and loses his temper. He is afraid of leaving the house. He is in debt to the bank and his relatives and friends. He still has to pay interest on the money that was stolen.
Mrs Chaarani says her life has changed negatively. She is fearful, angry and unhappy. Her eating, sleeping and enjoyment of life have been affected. She feels her life will never be the same again. She feels isolated from her family and friends. She also feels obliged to pay back the community money that was stolen.
Their relationship with each other has also suffered, and both of them have had to cancel overseas trips they had been planning for a long time.
Charges
In relation to this offending you both have pleaded guilty to:
a.One count of burglary contrary to section 76 of the Crimes Act 1958 (Vic), the maximum penalty for which is 10 years imprisonment; and
b.One charge of theft contrary to section 74 of the Crimes Act, the maximum penalty for which is 10 years imprisonment.
Mr Bowen, you have also pleaded guilty to one count of arson contrary to section 197 of the Crimes Act, the maximum penalty for which is 10 years imprisonment.
Mr Wolfe you have also pleaded guilty to:
a.One count of prohibited person possessing imitation firearm contrary to section 5AB of the Control of Weapons Act 1990 (Vic), the maximum penalty for which is a 10 years imprisonment;
b.Two counts of committing an indictable offence whilst on bail contrary to section 30B of the Bail Act 1977 (Vic), the maximum penalty for which is a fine of 30 penalty units or three months imprisonment; and
c.Three counts of contravening a conduct condition of bail contrary to section 30A(1) of the Bail Act 1977, the maximum penalty for which is also a fine of 30 penalty units or three months imprisonment.
Current sentencing practice
In sentencing you, I am required to have regard to current sentencing practice. Prior to the further plea hearing, counsel referred me to several comparator cases: Elakkoumi v DPP [2017] VSCA 186; Benkic v The Queen [2019] VSCA 34; Simpson v The Queen [2019] VSCA 82; Kulafi v The Queen; Nugyen v The Queen [2021] VSCA 369; and Sweeney v The King [2023] VSCA 9. I referred the parties to two comparator cases: DPP v Carter [2020] VCC 1757; and DPP v Savage [2024] VCC 687.
Every case is obviously different. Nevertheless, what I take from these cases is that:
a.General deterrence is an important sentencing consideration in offending of this kind;
b.Specific deterrence and community protection become more important where there is significant prior offending of the same kind;
c.Offenders will often receive a head sentence of imprisonment with a non-parole period;
d.However, combination sentences can be imposed where there are significant mitigatory factors, such as youthfulness.
Objective seriousness of offending
I turn to the objective seriousness of your offending and an assessment of your moral culpability. Your counsel submitted that your offending should be regarded as ‘mid-range’ of seriousness on the basis that:
a.While there was no evidence of meticulous pre-planning, there was some evidence of pre-planning involved. You were in two vehicles and waited until Mr and Mrs Chaarani left the home before you entered the property to steal.
b.The total value of the items stolen brings the offending into the mid-range of seriousness.
c.While you did clearly undertake some pre-planning, no attempts were made to conceal your identity.
d.The theft was motivated by your drug habits which is less aggravating than where money is taken for profit.
The prosecution submitted that, given the pre-planning, this was a serious example of the offence of burglary and therefore I should impose a term of imprisonment with a minimum non-parole period on the basis that:
a.The level of planning was such that you went to the Chaarani house with two others and in two vehicles. This suggests that you knew you would need to be able to move and take large objects.
b.Brazenly, you did this in the middle of the day.
c.The theft was invasive: you ransacked the Chaarani home looking for items to steal.
d.The high value and quantity of the items stolen was significant and shows that the motive for the theft went beyond supporting your drug habits.
e.The theft has had considerable ongoing impact on Mr and Mrs Chaarani.
Your offending is clearly serious, and has had a terrible and ongoing impact on Mr and Mrs Chaarani. I find that your offending in relation to the burglary and theft falls at the mid-range of seriousness. I also find that it is more serious than the additional individual offending to which you have each pleaded guilty.
Both defence counsel submitted that I could impose a combination sentence involving a term of imprisonment and a community correction order (CCO). Mr Wolfe, your counsel, submitted that the term of imprisonment could be limited to pre-sentence detention (56 days at time of plea). Mr Bowen your counsel conceded that it is likely I will be required to impose more than the pre-sentence detention that you have served (52 days at time of the initial plea).
The prosecution submitted that the seriousness of the offending required a head sentence with a non-parole period. The prosecution accepted that it was open to me to impose an aggregate sentence in relation to the offences of theft and burglary.
The prosecution also sought disposal and forfeiture orders. I make those orders.
Personal circumstances and subjective matters: Corey Wolfe
Corey Wolfe, I find that:[2]
[2] I have read and taken into account Outline of Submissions on Plea, and all other tendered material.
a.You were 27 years old at the time of the offending.
b.Your parents separated when you were young. Your father was physically violent to both you and your mother. [3] I accept that your troubled upbringing and early life continues to affect you, and give this weight in the sentencing process.[4]
[3] Dr Martin Jackson, Neuropsychological Report (30 January 2024).
[4] Bugmy v The Queen (2013) 249 CLR 571.
c.You have a very extensive criminal history. Relevantly you have been convicted in the past for numerous incidents of theft and committing indictable offences whilst on bail. You have been assessed as being at high risk of re-offending. [5]
d.You were diagnosed with ADHD as a child and medicated for the condition until you were 17. Since then, your ADHD has been untreated. I accept that your ADHD will make a term of imprisonment weigh more heavily on you.[6]
e.You used marijuana from an early age, and more recently have struggled with addiction to methamphetamine and GHB (which may have been a form of self-medication).[7] Your counsel told me at the time of the initial plea that you had completed two courses of drug and alcohol treatment and planned to continue with that treatment. You told your counsel, at that time, that you had not used methamphetamine since you were remanded on this matter.
f.Dr Martin Jackson was of the opinion that there is a clear temporal relationship between the onset of your offending behaviour and the onset of methamphetamine use, and that the relationship between your substance use and offending is likely to be exacerbated by your ADHD.[8] In sentencing you, I take into account the role which your drug addiction may have played in your offending.[9]
g.You have been given CCOs in the past and have breached them on numerous occasions.[10] Those CCOs have included supervision, treatment and rehabilitation, and offending behaviour program conditions.[11] The author of your CCO assessment report expressed “serious trepidation” concerning your capacity to comply with a CCO. [12] I share that concern.
h.You are the father to five children. Sadly, your daughter died by drowning when you were young. You are estranged from your 12 year old son Jai, but see your seven year old son Lucas on weekly supervised visits. Your partner Madison recently gave birth to twins. Your counsel told me that the birth of the twins has been an intervening factor in that it has encouraged you to address your drug use and has reduced the prospects of reoffending.
i.In your favour, for the first time in your life you have commenced working three to five days a week as a cleaner. While no material was tendered before me, your counsel told me that your employer is pleased with the quality of your work.
j.The prospect of prison has been hanging over you since you were charged in October 2022. As noted, during that time you have been employed and have become the father of twins with your new partner, both of which matters suggest that you now have improved prospects for rehabilitation. However, it is not clear on the material before me that a non-custodial sentence would be better for your rehabilitation than a custodial one.
k.Moreover, since these submissions were made at the initial plea hearing, you have engaged in further offending. On the further plea hearing, I was informed that you had pleaded guilty to charges of criminal damage and making threats to kill, and have further charges pending of possessing a drug of dependence and possessing a controlled weapon. This offending apparently took place in the context of drug use and spending time with people associated with drug use. This offending significantly undermined the arguments made about your prospects for rehabilitation on the initial plea. It also confirms that there is a need for specific deterrence.
l.You indicated your willingness to plead guilty on the morning of the contested committal. Although not the earliest possible plea, your plea of guilty saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. This is particularly important at a time when the courts are still dealing with the after-effects of the pandemic. Your plea also shows willingness to accept responsibility for your offending,[13] and is suggestive of some remorse. I will therefore reduce your sentence because of your plea of guilty.
[5] Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report (13 June 2024), p 4.
[6] R v Verdins (2007) 169 A Crim R 581, limb 5.
[7] Jackson Report, p 13.
[8] Jackson Report, p 15.
[9] R v McKee; R v Brooks (2003) 138 A Crim R 88.
[10] Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report (13 June 2024), pp 2-4.
[11] See Victoria Police Criminal History Report (13 December 2022).
[12] Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report (13 June 2024), p 7.
[13] Although it appears from Department of Justice and Community Safety, Extended Pre-Sentence Assessment – Outcome Report (13 June 2024), pp 1-2, that you still tend to blame others for your offending.
Orders
Taking all of these matters into account, I have formed the view that the seriousness of your offending requires a term of imprisonment of more than 12 months, and that a combination sentence is not open. I make the following orders:
a.On the charges of burglary and theft, I impose an aggregate sentence of 19 months imprisonment (this is the base sentence).
b.On the charges of being a prohibited person possessing imitation firearm, I impose a sentence of six months imprisonment, one month of which is to be served cumulatively on the base sentence.
c.On the bail offences, I impose an aggregate sentence of 1 month imprisonment, to be served concurrently with the base sentence.
d.This makes for a total effective sentence of 20 months imprisonment.
e.I order a minimum non-parole period of 14 months.
f.I declare that you have served 56 days by way of pre-sentence detention.
g.If you had not pleaded guilty, I would have imposed a total effective sentence of three years imprisonment.
Personal circumstances and subjective matters: Matthew Bowen
Matthew Bowen, I find that: [14]
[14] I have read and taken into account Defence Outline of Submissions for Plea (27 September 2023), along with the documents provided to me by the defence in support of those submissions.
a.You were 22 years old at the time of the offending.
b.Your parents separated when you were two and your mother re-partnered with your stepfather with whom you have an amicable relationship.[15] Growing up, you had limited contact with your biological father but have since re-connected with him. You have positive relationships with your siblings. Your mother remains your main source of family support.
[15] Naomi Cameron, Confidential Psychological Report (10 February 2023) and Confidential Psychological Report – Addendum Report (21 September 2023).
c.You started Year 8, but did not complete it. You have no employment history. Since you have been in prison you have been working as a laundry billet.
d.You have had one serious relationship in your life and as a result you have a four-year-old daughter. You have an ongoing relationship with her.
e.You were diagnosed with an Intellectual disability at age 16, and this disability makes it harder for you to make sense of what is going on. You have difficulty with short-term memory, problem-solving and decision making. Your learning speed and capacity for critical thinking are compromised. I accept that as a result of your conditions, a term of imprisonment will weigh more heavily on you.[16]
f.You are supported by the NDIS but up until recently have shown poor engagement with these services. Your engagement with the NDIS has increased since you have been in prison. Your prospects of rehabilitation will improve if you continue to engage with such support.[17]
g.You have a drug habit which began with the use of methamphetamine and GHB from age 15. You are now prescribed buprenorphine injections to assist with your drug addiction. Your counsel contends that the burglary and theft was motivated by your need to support your drug addiction. I take this into account (while noting the prosecution submission that you stole far more than could have been needed to support your addiction).[18]
h.You have prior convictions for theft, burglary and intentionally damaging property. It is conceded by your counsel that this means when sentencing you I need to consider specific deterrence.
i.You served a 14 month prison sentence for offences committed during the same period as this matter. That sentence was imposed in the Magistrates’ Court, which did not have jurisdiction to hear these charges. For that reason, your counsel submitted, you had lost the opportunity of having all of these matters heard at the same time, by the same court. I accept that this is relevant to the principle of totality.
j.You have been subject to one previous CCO and contravened this by not complying with conditions, and by further offending.[19] Your prospects of complying with a CCO are likely to improve if it includes a Justice Plan.
k.I sentence you as a youthful offender. I therefore give greater weight to your rehabilitation.[20] That said, your criminal history leaves me feeling cautious about your prospects of rehabilitation. You were assessed as being at high risk of reoffending.[21]
l.You indicated your willingness to plead guilty on the morning of the contested committal. Although not the earliest possible plea, your plea of guilty saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. This is particularly important at a time when the courts are still dealing with the after-effects of the pandemic. Your plea also shows your willingness to accept responsibility for your offending, and is suggestive of remorse. I will therefore reduce your sentence because of your plea of guilty.
[16] R v Verdins (2007) 169 A Crim R 581, limb 5.
[17] Cameron Addendum Report, [73(c)].
[18] R v McKee; R v Brooks (2003)1 38 A Crim R 88.
[19] Department of Justice, Community Correction Order Assessment Outcome Report (14 June 2024), p 1.
[20] R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) A Crim R 369.
[21] Department of Justice, Community Correction Order Assessment Outcome Report (14 June 2024), p 2.
Consent to CCO
In your case, I have accepted that the relevant sentencing purposes can best be achieved by the imposition of a combination sentence involving a term of imprisonment and a CCO. Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a longer term of imprisonment.
I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent. The CCO I intend to impose will be of two years duration. The following core conditions apply to all CCOs:
a.You must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment.
b.You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order.
c.You must report to a Community Corrections centre within two clear working days from the date of your release. You will be reporting to Melbourne Justice Service Centre.
d.You must notify a corrections officer of any change of address or employment within two clear working days after that change.
e.You must not leave Victoria except with the permission of the Secretary, or his or her nominee.
f.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
I intend to impose the further conditions that:
a.You will be under the supervision of a Community Corrections Officer.
b.You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager.
c.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.
d.You must participate in programs and/or courses that address factors relating to your offending, as directed by the Regional Manager.
e.You must participate in the services specified in a Justice Plan. This will require you to engage with a disability justice coordinator from the Department of Families, Fairness and Housing for the duration of the order and participate in any further planning as required. You are to also engage with NDIS providers and supports.
If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offence which is currently before me. That might include imposing a term of imprisonment. I will make an order that any breach by you of this CCO be brought back before me.
Do you consent to the imposition of a community correction order? [Yes].
Orders
Mr Bowen, I make the following orders:
a.On the charges of burglary and theft, I impose an aggregate sentence of 11 months imprisonment, together with a community correction order of two years duration (this is the base sentence).
b.On the charge of arson, I impose a sentence of eight months imprisonment, one month of which is to be served cumulatively on the base sentence.
c.This makes for a total effective sentence of 12 months imprisonment.
d.I declare that you have served 189 days by way of pre-sentence detention.
e.If you had not pleaded guilty, I would have imposed a total effective sentence of three years imprisonment.
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