Director of Public Prosecutions v Yates

[2014] VCC 933

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-02367

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA YATES

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2014
DATE OF SENTENCE:	11 June 2014
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2014] VCC 933

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: Pleaded guilty aggravated burglary x 1, recklessly cause injury x 1 - two co-accused; one co-accused partner of victim – alcohol fuelled  offence – 23 year old offender – alcoholic  parents – alcohol problem –  no history of violence  - good prospects for rehabilitation.
Sentence: 2 year Community Corrections Order – 80 hours community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	OPP
For the Offender	Mr J. Carr	Greg Thomas solicitors

HER HONOUR: 

1Joshua Yates, you have pleaded guilty to one charge of aggravated burglary and one charge of causing injury recklessly.  The maximum penalties for these charges are prison terms of 25 years and five years respectively.  The offences occurred on 19 September 2012 at a house in Heidelberg occupied by Brenton Hopkins near where you were staying at the time.

2You had spent several hours drinking with the co‑accused, Francis Stewart and Joel Collins and with the victim, Krystal Lewis, in the house occupied by Stewart and Lewis where you stayed from time to time and still do.  Ms Lewis had left the house and gone to visit Hopkins and had remained there for several hours.  Soon after midnight, Stewart and Collins went to find her and bring her home.  They banged on the door and kicked it and Stewart shouted abuse at Ms Lewis.  They were told to go away and after further abuse towards Ms Lewis, they left. 

3A neighbour called the police and before they arrived, the two men returned with you in the car.  You and Collins went to the back of the house where Collins reached through a window and unlocked the back door.  The two of you entered the house and you told Hopkins you were going to kill him.  Hopkins ran through the house and out the front door where upon Stewart entered the house via the open front door. 

4In the house, Ms Lewis told you all to get out, hit you and Stewart, pushing you towards the front door.  You and Stewart both hit Ms Lewis causing her nose to bleed and knocking her against a wall and to the ground.  Collins told you and Stewart to take it easy as the police would be coming and indeed, another neighbour had also called the police and they arrived, flagged down by Hopkins who was in the street.  The police saw you at the front door, with Ms Lewis yelling at you to get out of the house.  The police told you to get on the ground, but you ignored them and walked passed them, whereupon an officer sprayed you in the face with OC Spray.  You sat down and were arrested.

5You and Stewart were taken to the police station and Collins was arrested a few hours later.  Ms Lewis was taken to a doctor who noticed several areas of swelling and bruising to her face and head.  There were also minor lacerations to her lip and ear.  She reported tenderness to her nose and obviously the other injuries would have caused her pain as well, but fortunately none of her injuries required treatment. 

6She has written a letter to the court in which she explained that she was drunk as you all were and that she pushed and hit you trying to get you to go and leave her alone.  When interviewed, you told the police that you had not gone to the house with Stewart and Collins the first time because you did not want to get involved, but you returned with them because they were so angry and that was why you entered the house when the occupants would not open the door.

7You said you kicked the back door and did most of the yelling.  You could not recall punching Ms Lewis, but you “gave Hopkins a couple”.  You now accept that you did hit her and you are sorry about it.  Initially, you and Stewart pleaded guilty to charges of aggravated burglary and intentionally causing injury, but later changed your pleas and the matter was to go to trial on 24 February this year.  On 21 February, it resolved into a plea to charges of aggravated burglary and recklessly causing injury.

8Because the ultimate plea of guilty was to a lesser charge, you are entitled to have the plea entered on 21 February regarded as having been entered at the earliest reasonable time.  It avoided the expense and inconvenience of a trial and assisted in the progress of the case.  Because of the circumstances of the initial plea, followed by a change of plea and the case being set down for trial, there was a considerable delay, but that is not to be attributed to any one party and it is taken into account because the case was hanging over your head for a considerable time.  Those are matters I take into account as well as the fact that your plea is an indication of remorse.

9Your personal circumstances are these -  that you are still a young man at the age of 25 and you were 23 at the time of the offences.  You grew up in a rural community in New Zealand and both your parents were alcoholics.  Your father left the home when you were about two and you were effectively brought up by your maternal grandfather.  Your father came back into your life when you were 16 and took you to live with him and to work in an abattoir.  In the company of the other workers, you established a heavy drinking habit and this has persisted into your adult life. 

10At 18, you followed your father to Australia and obtained work here, but when your father became violent towards you, you relied on alcohol.  You moved into a youth refuge run by the Salvation Army and there, met a young woman with whom you established a relationship, eventually moving into a rented house together.  A baby was born, but tragically the baby died of SIDS at the age of three months.  You were aged 19 at this time and the relationship did not survive.  You were living on the streets and your alcohol use increased.

11Eventually, you met Mr Stewart and Ms Lewis and you now regard them as your surrogate family.  You stay with them periodically, but presently you are living with a group of men in tents on privately‑owned land.  You are working and you have reduced your alcohol intake although it is still high.

12Shortly before the offending, you were living with Mr Stewart and Ms Lewis and your maternal grandfather died in New Zealand.  You were unable to afford the fare to attend his funeral.  Within a short time, your paternal grandfather also died.  Your only previous court appearance was for a charge of criminal damage, resulting from an occasion when you broke the window of a telephone box in anger because the phone was not working.  You were placed on an undertaking to be of good behaviour. 

13It is clear that your chief difficulty is the abuse of alcohol.  You grew up in a domestic and work culture of heavy drinking and although you appear to have made the connection between alcohol and some of your troubles, in particular the offending on this particular night, you clearly need assistance in overcoming it.  There are indications that you have very good prospects for rehabilitation.  It seems you have a positive and optimistic outlook on life with no history of violence until this matter and you have a good work ethic. 

14Indeed, you are now working in a labouring job to which you must travel for more than an hour to start at 7 am.  I am told there is a possibility that an apprenticeship might be available for you next year to be arranged by your current employer.  I note that your arrangements to be represented on this plea through Victoria Legal Aid fell through as you were unable to meet payments required of you and you did not follow through to see if alternative arrangements could be made.  In relation to that, I am told that you regularly send money to your mother and young sisters in New Zealand.

15Nonetheless, you are ably represented by counsel today on a pro bono basis and I accept the submissions made on your behalf that treatment from alcohol abuse would help clear a path for your chances of rehabilitation without, as Mr Carr puts it, any guarantees.

16A report from an alcohol and drug counsellor whom you consulted voluntarily, confirms your need for continuing counselling and that needs to be given some priority in your life. 

17Aggravated burglary is a serious charge as is the charge of injury itself.  A person is entitled to feel safe in their home and to exclude others who have no business there or who are not wanted there for whatever reason.  You went along with the other offenders and you took an active part in what happened.  People who offend in that way must understand that it deserves stern punishment and a term of imprisonment is often the result. 

18In your case, your circumstances call for some leniency, although there will be some onerous obligations imposed on you.  It is in your interest that you change your ways and also in the interest of the community that you do so and I am satisfied that the chance I am going to give you will likely prevent further offending on your part.  Certainly it is a better chance than going to prison will give you. 

19You have been assessed, as you know, as suitable for a Community Corrections Order.  That will commence today and it will last for two years.  You will be under supervision and you must perform 80 hours of unpaid community work within six months.  You must submit for assessment and treatment for alcohol abuse and for any appropriate psychological treatment in view of your background and possible unresolved grief. 

20The officer who assessed you suggested an anger management program might also be considered suitable for you and I shall take up that suggestion by requiring you to be assessed for such a program as well.  Hopefully these measures will help you to achieve the stability in your life that, it seems to me, you aspire to.

21The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained from you and you do not oppose that and I make that order.  I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.

22If you had pleaded not guilty to these charges, I would have sentenced you to a Community Corrections Order for three years with 120 hours of unpaid community work.

23Mr Albert, is there anything that I have omitted?

24MR ALBERT:  No, Your Honour.

25HER HONOUR:  All right, Mr Carr, anything further?

26MR CARR:  No, Your Honour.

27HER HONOUR:  Now the Community Corrections Order is available for signature.  If Mr Carr would like to have a quick look at that on the way, then please do.

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