Director of Public Prosecutions v Young

[2021] VCC 1918

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

Case No. CR-20-01609

Indictment No. K12894830.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY YOUNG

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	23 November 2021
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2021] VCC 1918

REASONS FOR SENTENCE

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Subject:  Criminal Law - Sentence

Catchwords:  Aggravated Burglary – Causing Injury Recklessly – Relevant Criminal History – COVID-19 – Community Protection – General and Specific Deterrence – Intellectual Disability – Justice Plan – Judicial Monitoring

Legislation Cited:  Crimes Act 1958 s77, s18, Sentencing Act 1991 s18, s44

Cases Cited:DPP v Meyers [2014] VSCA 314, DPP vWorboyes [2021] VSCA 169; Muldrock v R (2011) 244 CLR 120; R v Verdins & Ors [2007] VSCA 102

Sentence:Convicted and sentenced to 398 days imprisonment (reckoned as served) and Community Corrections Order of 2 years duration.             

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Solicitor for the Office of Public Prosecutions
For Accused	Mr J. Desmond	Stephen Peterson Lawyers Pty Ltd

HIS HONOUR:

1Corey Young, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is 25 years' imprisonment, and a charge of causing injury recklessly, for which the maximum penalty is 5 years' imprisonment

2You were born in July 1999 and you were therefore 20 years old at the time of the offending.  You are now 22 years old.

3The facts of this matter were set out in the prosecution opening which was tendered as an exhibit on the plea.

4At the time of the offending you had no fixed address.  You had been staying on and off for a time at the home of your cousin, the victim in this matter, Iesha Austin.  She was 18 years old and she lived alone at 29 King Street in Moe.  You moved out prior to the offending.  She had given you a key to the house while you were staying there but took it back the night before the offending.

5Her mother, Lindy Pepper, had purchased a Holden Commodore in May 2019.  The car could not be driven but Lindy Pepper intended to have it repaired and give it to the victim, Iesha Austin.

6On 18 October 2019, you attended at Lindy Pepper's address in Moe and, with the help of an associate, towed the Holden Commodore to another address.  Lindy Pepper reported that the vehicle was missing to the police and it was recovered by police on 11 October 2019 at an address in Moe.  You were there.  After this, you sent the victim a number of threatening messages via Instagram and via text.

7Five days later at about 5 am on Tuesday, 16 October 2019, the victim was standing in her lounge window waiting for a taxi to take her to work.  Her 15 year old cousin was also present in the house sleeping in the lounge room.  The front wooden door of the house was open but the security door was closed.

8The victim saw a white Holden Commodore she did not recognise pull up over the road.  You jumped out of the rear passenger side of the Commodore and ran across the street towards her house.  The victim shut and locked the front door.  She ran to her bedroom followed by her cousin and shut the bedroom door.  She stood against the door fearing she was going to be assaulted.

9On the way into the property you damaged the front metal gate somehow so that it would no longer close properly.  You then forced open the security door damaging it.  You kicked in the front wooden door damaging the door and the frame and entered the house intending to assault the victim.  This is the basis of charge 1, aggravated burglary.

10You then kicked the bedroom door several times.  The top hinges came off and the door fell into the bedroom on its side.  You entered the bedroom.  You struck the victim to the side of her head causing her to fall to the floor.  She lay on her side trying to protect her face with her hands.  You then used your foot to stomp on her a number of times.  This caused her pain and minor injuries to her face and her body.  This is the basis of charge 2, recklessly causing injury.

11You also punched a mirror that was on a small table against a wall next to the door in the bedroom causing it to break.  The victim then got up and ran to a second room nearby.  She lay on the floor as you ran in after her.  You stood over her saying, 'Give me your fuckin' phone'.  The victim did not say anything and did not give you her phone.  You left the room and searched the rest of the house for a short time.  As you did so, the victim got up and ran outside to a neighbour's house.  She sat on their steps trying to calm herself.

12The Commodore had moved to a different spot on the street.  You ran from the victim's house and got into the back passenger seat.  The vehicle then drove off.

13The victim initially walked to her mother's house and she was not home.  She met her mother at the train station and they walked to the Moe Police Station to report what had happened.  The victim arrived at the station at about 7 am and spoke to the senior constable on duty.  The senior constable observed injuries to the complainant which included a deep red graze to her right cheek, pinkness under her right eye, a small graze under her top lip, redness on her left shoulder blade, some pinkness to her left cheekbone, small cuts on the back of her right upper arm, bruising on the underside of her left forearm, slight redness on the front side of her hip, and several bumps on her scalp.

14Police took photographs of these injuries and crime scene officers attended at the victim's address and took photographs of the house which included damage to the front metal gate and the front security and wooden doors and the internal bedroom door as well as the broken mirror.  Those photographs are in the depositions and I have looked at those photographs.  Ms Proctor was also spoken to by police but she declined to make a statement.

15You were arrested on 7 November 2019 and you were interviewed at the Moe Police Station.  You told police you lived at the victim's house; that you have a key; that the security and front door had been fucked up for a while; that you moved out because the victim uses drugs; and. that you would not bash her as you knew she was pregnant.  You also said that the victim asked you to get the car fixed and gave you a key and it is now fixed and you stopped talking to them because of this and you said you were pissed off over the incident. 

16Mr Young, this was a serious offence.  You entered a private residence in the early hours with a clear intent to assault the female victim.  Your motivation seems to have been your displeasure at her mother involving the police over the car that you took.  To enter you broke the security door and then kicked open the front door.  Then you kicked the bedroom door to the ground.  This was a violent entry and must have been terrifying for the victim and her 15 year old cousin.

17Aggravated burglary carries a maximum penalty of 25 years' imprisonment.  This reflects it seriousness.  In the case of the DPP v Meyers [2014] VSCA 314, the Court of Appeal set out a non-exhaustive list of factors to be considered in assessing the gravity of an aggravated burglary. Applying those factors to this offence, your offending was unquestionably a serious aggravated burglary.

18It was also a serious example of reckless injury involving knocking a young woman to the ground and then stomping on her head.  Fortunately, she sustained only relatively minor injuries.  All this occurred in the presence of a 15 year old.

19The victims have not made victim impact statements.  However, this must have been a very frightening experience for both Ms Austin and Ms Proctor.

20Offending such as this would ordinarily attract a very substantial sentence of imprisonment.  You pleaded guilty to the charges approximately six months after the contested committal after participation in this court in the Emergency Case Management Procedure.  This was far from the earliest opportunity.  You ran a contested committal and the victim was cross-examined.  Nonetheless, your plea has saved the court significant time and resources that would have been involved in a trial.

21The utilitarian value of your plea is heightened in the current circumstances where the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic.  This increased utilitarian value of the guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes and I apply those principles in sentencing you.  I also accept your guilty plea indicates some remorse and a willingness to facilitate the course of justice.  Your guilty plea entitles you to a significant sentencing discount.

22Your personal circumstances were outlined by Mr Desmond on the plea.  They are also dealt with in the neuropsychological report prepared by Ms Laura Scott dated 11 August 2021, a report by psychologist, Carla Lechner dated 16 July 2019, three Court Integrated Service Program reports dated 4 January 2021, 4 February 2021, and 11 March 2021; and also an earlier justice plan dated 15 July 2019.  These documents were all tendered on the plea by Mr Desmond.

23Ms Scott also gave evidence at the plea hearing.

24You are a man of Aboriginal background.  You are the youngest of four siblings.  Your parents separated when you were six years old and you grew up with your father.  Your mother was a significant user of alcohol and cannabis.  She died from a drug overdose when you were 13 years of age.

25You left school at the age of 15.  You then enrolled in an alternative indigenous educational program where your confidence and literacy skills improved.  At that school you were diagnosed with a mild intellectual disability.  Before this you had changed school six times over a two year period due to behavioural problems. 

26Ms Lechner conducted intellectual testing, the results of which were that you suffer from an intellectual disability with a full scale IQ of 67.  Ms Scott says that you presented with a 'globally reduced level of cognitive function' and your neuropsychological profile was 'consistent with a mild intellectual disability’.

27Background material provided to her raised concerns about your possible prenatal exposure to drugs and alcohol.  Ms Scott also interviewed your father who was adamant that your mother did not consume any alcohol or drugs during her pregnancy.  He said you were slow to acquire speech skills and struggled with literacy skills at school.  There is no doubt about your intellectual disability, it is very clear in your history.

28Furthermore, you were on a community correction order with a justice plan attached at the time of this offending.  Ms Lechner also did tests for depression and anxiety.  The results were in the extreme range for depression and mild for anxiety.

29You have no formal employment history.  You told Ms Lechner that after leaving school you were involved in drugs and in crime and there was no point looking for a job because you could not read or write.  In prison you had employment as a billet and in the woodwork section during your remand period.

30You have a history of substance abuse and first smoked cannabis at the age of 13 and you reported substantial consumption when not in custody.  In the CISP progress report dated 11 March 2021, you attributed your regular offending to the need to fund your drug use.  You have abused alcohol and drugs since you were aged 15. You have used methylamphetamine regularly.

31You have relevant prior convictions.  Your criminal history spans from 2014 in the Children's Court to 2019 and includes offences of carjacking, robbery, offences of violence, threats, and dishonesty.  Mr Young, yours is a very discouraging history.  If you do not address your drug use and lifestyle problems soon, you will face ever increasing periods of imprisonment.  As I have already mentioned you were on a community correction order at the time you committed these offences. That order was imposed by Judge Smallwood in July 2019.

32Ms Scott said in her report that your intellectual disability contributed to the offending in direct and indirect ways.  She said your cognitive impairments had contributed to your 'negative life trajectory'.  Your intellectual deficits have made it difficult for you to get work or engage in education which would be protective factors.  Your verbal deficits make it difficult for you to resolve conflict and manage your emotions because you struggle to express yourself.  Your behaviour is disorganised and impulsive.  More directly, on the day of the offending, your behaviour escalated rapidly and this is consistent with poor impulse control.  Your ability to learn from past adverse behaviours is limited and you have considerable difficulty in pausing to think before acting.

33In cross-examination Ms Scott accepted that your drug use was a contributor to your offence but said your intellectual disability made you more prone to drug use generally and said that on the day your intellectual disability and the drug use combined to cause to the escalation of your conduct.

34Based on the psychological material in this case, I have had regard to the principles in Verdins or perhaps more correctly for a person with an intellectual disability, the principles in the case of Muldrock v R (2011) 244 CLR 120. I am of the view that your moral culpability is reduced by reason of your intellectual disability even though drugs were clearly a contributing factor to the offending.

35I have also given substantially less wait to general deterrence and specific deterrence than would otherwise be the case.  But, Mr Young, the other side of your intellectual disability and your problems with impulse control is that it means you are more likely to offend.  Therefore, community protection is of importance in sentencing you and will assume even greater significance if attempts at rehabilitation continue to fail.

36Additionally, your father says that you recently had a meltdown at the prospect of reincarceration and you have a history of suicidal behaviours in custody.  Therefore, I have had regard to the fact that further imprisonment would be more burdensome upon you than someone who did not suffer from an intellectual disability.

37It is difficult to be optimistic about your prospects of rehabilitation considering your criminal history.  Whilst on bail for this matter you offended again, although not in like fashion, and you were sentenced to 42 days for that offending and then released.  Since you were released on bail in December 2020, I am told, and I accept, that you have not used methylamphetamine.  Ms Scott in her report said:

He acknowledges his current circumstances are much more stable and that he had been abstinent of methamphetamine since late last year which he viewed as positive.  He feels more connected to his family and believed that if he avoided socialising with old acquaintances he would be able to avoid returning to drug use

38She also said:

The current offending appears to have caused Mr Young to feel significant shame because the victim was a close family member

39She went on to say:

There has been abstained period of abstinence from major drugs and increased prosocial conduct.  It would seem an opportune time to offer comprehensive interventions.  Mr Young may be more receptive to the offer of support and perhaps more motivated than before to change his life trajectory at this time

40I note, however, that in the corrections assessment it is noted by the author that your insight into the offending in this case and the impact on the victims is limited.  And frankly, Mr Young, that is a cause for concern but is no doubt consistent with your intellectual disability.  But, you need to come to terms with the seriousness of what you did on this occasion.

41Additionally, you have shown some reluctance to engage with the NDIS and the package that they provide for you.  That is all part of what is recommended in the justice plan and you need to understand that you must cooperate with corrections, with those assisting you through the NDIS, and through the justice plan as well.  If you do not do this, it is almost inevitable that you will fall back into significant drug use and you will reoffend which would lead to a breach of the order that I intend to impose.

42I say this, whilst I have a guarded view your prospects of rehabilitation, you are still young and you were just 20 at the time of the offending.  I do accept the view of Ms Scott that now is an opportune time for comprehensive interventions.  You need to take the opportunity.  There might not be many more if you continue to offend in this fashion.  As I said earlier, the protection of the community will become of increasing importance if you continue to commit serious offences and you can only expect periods of imprisonment in the future if you do not take this opportunity.

43I also take into account that you were remanded in custody between 7 November 2019 until 8 December 2020 at which you were granted bail.  That is a period of some 398 days.  You were therefore in custody during the pandemic at a time when prison conditions were restricted.  You had no visits or phone calls from family and friends in that time.  Education courses were affected, lockdowns were prevalent, and I have taken those matters into account as increasing the burden of the time you spent on remand as a factor relevant to the decision whether to impose any further period of imprisonment.  Such conditions are likely to continue at some level in the future.

44Mr Desmond submitted that I should impose a combined sentence of imprisonment and a community correction order with no more time to be served having regard to the matters in mitigation and the opportunity to put in place rehabilitative measures.  Ms Pezzimenti, the prosecutor, submitted that such a sentence was within the range given the mitigating factors in this case. 

45I intend to impose such an order.  But, given the gravity of the offending in this case and considering your history of committing offences of violence, the order that I will make is in fact a significant act of leniency, Mr Young, and I hope you understand that.

46However, you have spent over a year in custody and you may be at the time when you are ready to accept support and lead a more stable life.  You are young, you have intellectual deficits.  I have decided that to return you to custody right now awaiting parole would be counterproductive to your rehabilitation.

47I sentence you as follows.  On charge 1 of aggravated burglary, you are convicted and sentenced to 398 days' imprisonment.

48On Charge 2 of causing injury recklessly, you are convicted and sentenced to 6 months' imprisonment.

49That sentence is concurrent with the sentence on Charge 1.

50That makes a total effective sentence of 398 days.

51Pursuant to section 18 of the Sentencing Act, I declare 398 days as pre-sentence detention to be deducted from the period of imprisonment that I have imposed.

52Pursuant to section 44 of the Sentencing Act, on both charges, I order that you are to be placed on a community correction order for two years with the following special conditions: supervision, testing and treatment for drug and alcohol; testing and treatment for issues relating to your mental health; offending behaviour programs. I attach a justice plan to this order so that you will have to comply with the justice plan that is attached. You should know what that is all about because you had one on the order before Judge Smallwood.

53I also intend to impose judicial monitoring and I will pick a date for that.  I indicate that but for your plea of guilty I would have imposed a total effective sentence of four years with a minimum of two and years and ten months.  So, that is a significant reduction in all the circumstances, Mr Young.

54So, those are the orders that I propose to make.  We will have that prepared now and you will need to sign the order and I will go through the conditions with you.

55All right.  Are there any questions or clarifications required?

56MS PEZZIMENTI:  No, Your Honour.

57HIS HONOUR:  Mr Desmond?

58MR DESMOND:  Pardon me.  Sorry, I was on mute.  No, Your Honour, only the date for the judicial monitoring extension.

59HIS HONOUR:  Yes, all right.  Right, we will just have that printed out.  Mr Young, it will take a little bit of time.  Now, Mr Young, while we are waiting for that to be done, you have to consent to the order; do you understand?  I cannot make the order unless you agree to it.  So, do you consent to this order?  You do.  All right.

60I will make it 7 February is the first judicial monitoring.  Mr Young, what that is all about is you will have to come back and see me or you can do it remotely if you have got the capacity to do it.  I do not know if you have.  If you have not, maybe you can get your lawyers to help you out or someone you know in the community to help you out by providing you with an internet link.

61But what happens is, I get a report about how you are going and then you appear.  You do not have lawyers in the case.  The prosecution do not need to appear nor does Mr Desmond or anyone on your behalf.  But, the corrections officer appears and tells me how you are going and I get a report about it and then we discuss how things are going; do you understand?  All right.  And that is going to happen on 7 February, it will be 9.15 in the morning.  Any problem with that?  Sorry, speak up thanks.

62OFFENDER:  (Indistinct words) down in Morwell.

63HIS HONOUR:  You will be in Morwell.  So, you will be able to appear either via the internet somewhere or if you needed to go to Morwell Court, perhaps you could do that.  But, these days most people are appearing via the internet.  Now, if you have got some problems with that, you can talk to your corrections officer.  You could probably go into the corrections office and appear there.  But, just make sure you make some arrangements, all right.  

63Okay, how are we going with that?  All right.

64The other thing, Mr Young, you will probably at some point have to appear before Judge Smallwood.  He is the judge that gave you the last community correction order and he will have to decide what he does.  But, you need to understand that what you do from now on will be matters that are brought up before Judge Smallwood, if you have to appear then before him for breaching this order; do you understand?

65So, if corrections are very unfavourable to you because you have not being doing the order, well, then you will have that to deal with that as well as potentially having to come back before me.  But, I will talk to you about that in a moment.

66All right.  Now, Mr Young, I am going to read you the conditions, all right.  Now, listen carefully.  These are the conditions of a community correction order.  You cannot commit another offence that you could be imprisoned for during the time the order is in force, all right.  That is a breach and that is why you will be going up at some point before Judge Smallwood for a breach of the earlier order.

67Second, you have got to comply with any of the sentencing regulation obligations or requirements. 

68Third, you must report to and receive visits from corrections, all right.  So, if they want you to visit, well, you have got to; do you understand?  You have to report to corrections within two clear days of this order starting.  So, that means you have to go to Morwell Correctional Services.

69If you change your address, you are not working but if you were working, your address or your job, you have to let the corrections officer know within two days, okay.  You cannot leave Victoria without telling corrections.  And you have to obey all of their lawful instructions and directions from corrections.  They are the core conditions. 

70Then on top of that, you are under supervision so you have to attend for supervision for two years.  You must undergo assessment and treatment for drug abuse, or drug dependency, as directed.  So, if they want you to do testing or get drug treatment, you have to do it.  You have to undergo assessment and treatment for alcohol abuse as directed.  You must undergo any mental health assessment or treatment including psychological, neuropsychological, psychiatric, or treatment in a hospital as directed.  If they want you to do it, that is part of this order.

71You also must participate in any programs or courses that address factors relating to your offending as directed.  So, if corrections want you to do programs - say they want you to go anger management or impulse management, you have to do it. 

72Additionally, you have to attend for judicial monitoring on 7 February next year at 9.15 am and you must participate in the services specified in the justice plan for 24 months.  Now, do you understand all those conditions?

73HIS HONOUR:  You consent to a community correction order in those terms.  All right.  I will get you to sign it and then I will sign it.  All right.  Now, if you breach this order, Mr Young, what happens is this is a combined order.  What I have done is combine the prison that you have already done with a corrections order.  If you breach it by not doing it or by reoffending, the most likely option is that I will cancel it and I will re-sentence.  I will vacate the prison terms and I reimpose new prison terms.  You get your 398 days deducted but I would be looking at a head sentence and a non-parole period and it would be almost inevitable in that context that you would have to go back into prison.

74Also, if you contravene the order, you breach the order, you do not do things, you reoffend, that is an offence of itself and you can get some gaol for that as well.  So, you have got all of that that should motivate you to get through it. 

75And on top of that, because you have to face Judge Smallwood, it seems to me inevitable that questions will be asked about how you are going on the order that I have imposed.  And if the answer is you are not doing any good, then that will be a matter that Judge Smallwood will have to look at when he deals with the breach.  And he might have to re-sentence you as well.  So, you are sort of loaded up, if you understand what I mean.  You have got this offence with the correction order and you have got the other one before Judge Smallwood.

76If you do rehabilitate then that is positive and everyone will regard that as positive and that will be a big factor for Judge Smallwood.  But, if you just reoffend and breach this order, there will not be any choice.  And in future, courts will look back on this period and say, 'Well, two judges gave you a chance'. Judge Smallwood gave you a correction order after a period in custody and then I did the same thing.  So, the court tried but if you cannot take advantage of it, as I said earlier, it becomes a case of simply having to protect the community from the cycle of serious offending.  And the result is ever increasing periods of imprisonment.

77Now, you can have a better life than that, Mr Young, if you are able to stay away from the use of drugs it seems to me.  You cannot go around breaking into people's houses and assaulting them.  It is extremely frightening for them.  You need to understand that.  You could cause serious damage doing what you did on this occasion.  It is just not on, all right.  And it will end up in you getting sentences of imprisonment that are measures in years.  Do you understand?

78OFFENDER:  Yes.

79HIS HONOUR:  That is your future if you keep offending.  Now, there is every possible support in place here and you simply need to take advantage of it, all right.  Did you understand all of this?

80OFFENDER:  Yes.

81HIS HONOUR:  All right.  Okay.  So, you will get a copy of that order now and we will send a copy through to the Crown and your solicitors.  Nothing more, Ms Pezzimenti?

82MS PEZZIMENTI:  No, Your Honour.  Thank you.

83HIS HONOUR:  All right, thank you very much for your assistance in this matter.

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