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[2020] VCC 15
General information, not legal advice.
County Court of Victoria
2020-01-29
Original judgment source is linked above.
1 Scott Larkins, you have been convicted after trial, of one charge of home invasion, for which the maximum penalty is 25 years imprisonment. You pleaded guilty to one charge of theft, for which the maximum penalty is 10 years imprisonment. You were found not guilty of a common law assault.
2 You also pleaded guilty to one charge of possess cannabis which was severed from the trial indictment. A small amount of cannabis was located by police when they conducted a search warrant at your home on 19 July 2018. The prosecution accepts that it was a small amount and conceded that the maximum penalty for this offence is five penalty units.
3 The complainant in this matter is Cheyenne Harnett (Harnett). At the time of the offending, she was a housemate of Joshua O'Connell (O'Connell) and was living at Kaola Street, Belgrave (O'Connell's house).
4 The co-offender is Luke Fitzgerald (Fitzgerald). He pleaded guilty to one charge of home invasion and other offences being one charge of threat to kill, one charge of stalking, one charge of common assault, one charge of criminal damage and one charge of theft. Fitzgerald had been in a relationship with Madison Westcott (Westcott). On 13 July 2018, Fitzgerald discovered text messages between Westcott and O'Connell. Fitzgerald formed the view that O'Connell and Westcott had become involved. Fitzgerald became enraged.
5 O'Connell learned from Westcott that Fitzgerald had formed the belief that they had slept together. O'Connell received threatening text messages from Fitzgerald stating that he was going to be bashed. Due to these threats, O'Connell told Harnett that he needed to leave the house. O'Connell took his dogs and left the house to stay at his grandmother's house.[2] Harnett locked the doors and slept on the couch in the living room on that evening.
6 During the afternoon of 13 July 2018, Fitzgerald contacted you to inform you of his suspicions about O'Connell and Westcott. You joined Fitzgerald in Belgrave and the two of you went to the nearby Zuke's Bar in Belgrave. You both went to O'Connell's house. By its verdict, the jury must have accepted that the plan was to assault O'Connell.
7 Harnett fell asleep at about eleven o'clock. She woke at approximately 2 am to the sound of you and Fitzgerald in the house.
8 Fitzgerald gained entry to the house by removing the flyscreen from a bedroom window. He then let you into the house through the front door.
9 Once both of you were inside the house, you realised that O'Connell was not home and that a girl was on the couch. Fitzgerald then went to the spare room, where he knew O'Connell kept his music equipment. He took O'Connell's Apple laptop, and a bass guitar which O'Connell's former housemate had left behind.
10 When she awoke, Harnett saw a male standing on the upper level of the split-level house watching her. She heard noises coming from the spare room. Harnett walked to the spare room and saw one of the men facing the window and the other kneeling on the ground picking things up. One of the men told Harnett to go back to bed. One of the men came up close to Harnett and she was intimidated. She walked to her bedroom and he followed her, looking inside the room. He then slammed the door.
11 Harnett stayed in her room a short while and was crying. Harnett then decided to leave her room to confront the men, asking them to 'get the fuck out of my house'. Harnett collected her phone from the lounge and went to the spare room.
12 Harnett then went back to her room. While she was inside her room, she heard banging and smashing. Fitzgerald broke glasses and damaged walls. Fitzgerald bled on the floor.[3]
13 You and Fitzgerald then left the house through the front door, which you left open. You took with you the laptop and bass guitar that Fitzgerald had taken from the spare room (Charge 3 - Theft). You made your way on foot along a nearby walking track. Fitzgerald left the guitar and laptop in bushes next to the track, where they were later found by members of the public and reported to police.
14 You told the police that after you left the house, you realised that you would have left a lot of prints so you thought that maybe you 'should go back down and try and get rid of em'. When you walked back down, an officer was there with a dog and torch. You said that you 'proceeded to run up the hill and couldn't- couldn't do it any more, laid down, hands behind [your] back'.[4]
15 Fitzgerald also ran from the police dog. When apprehended, Fitzgerald provided police with a false account. Your details were obtained, but you did not say anything about the incident.
16 Both of you were arrested at your homes on 19 July 2018 and search warrants were executed. When you were arrested, a small quantity of cannabis was located.
17 The facts in this case are very serious. The offence was committed at about
3 am. You remained in the house even after you realised that O'Connell was not home and that a young female who was unknown to you, was in the house. You entered O'Connell's home intending to assault O'Connell. You stated in your record of interview that Fitzgerald showed you a knife and that you knew that Fitzgerald had a knife before you entered O'Connell's home.[5] You had ample opportunity to withdraw from the plan, but instead chose to enter the premises to support your friend. As part of that support, you were involved in stealing items and confronting the young female, Harnett.
18 In relation to the theft, the items were abandoned by both offenders, recovered and returned to the owner.
19 Although a victim impact statement has not been tendered, it is clear from the evidence I do have before me, that there was considerable suffering on the part of the victim as a result of your actions. She told the jury that she was alone and felt scared and confused.[6] After the offending, Harnett fell out with O'Connell and became homeless.
20 As has been pointed out by your counsel, there are however some mitigating factors. You pleaded guilty to the offences of theft and possess cannabis. You are entitled to have that fact taken into account in your favour, in relation to those offences and I do so. You made admissions during the record of interview with police including being present and having stolen the guitar in company with Fitzgerald. You also expressed remorse for your conduct and appreciation for the wrongfulness of your conduct.[7] Your counsel referred to the expressions in the record of interview with the police, about the way in which Harnett might have felt.
21 Although you ran a trial, you made numerous offers to plead. The prosecution accepts that the first plea offer made verbally at committal on 21 January 2019 by the offender's then counsel, is broadly consistent with the jury's verdict. Having considered the whole of the evidence, I accept that you have made expressions of genuine remorse and are remorseful for your conduct.
22 I have been told something of your personal history and your circumstances. You were born on 24 December 1993 and are 26 years old. At the time of the offence, you were 24 years old. You are the youngest of four children. You come from a hardworking family.
23 Your parents separated in 2005. Your father, a spray painter at a panel shop, moved to Queensland in approximately 2007. Your mother is a food process worker and does laundry work. She commenced a relationship with Paul Heal fourteen years ago in 2006. Paul Heal works at Multiplex as a construction worker. Your mother and Paul Heal were present during the trial and at verdict.
24 You were educated at Upper Ferntree Gully Primary school and attended Upwey High for Year 7 and part of Year 8.
25 On 11 November 2006, you suffered a severe injury when you were 12 years old. You were wrapped in industrial gladwrap from neck to toe by school peers and rolled off a 1.5 metre drop onto a concrete driveway. You lost consciousness for twenty minutes and registered with a Glasgow Coma Scale score of three, when admitted to the Royal Melbourne Hospital. You were in the Intensive Care Unit from 12 November until 15 November 2006. The post trauma amnesia lasted for approximately thirteen days. One of the side effects of the accident is that you now have epilepsy and need to take four tablets a day, for the rest of your life.
26 After the accident, you left regular school due to behavioural changes. You attended Leaps and Bounds in Bayswater and the Mountain District Learning Centre Ferntree Gully. You achieved a VCAL Certificate for the equivalent of Year 11. In January 2012, you obtained a Certificate II in Conservation and Land Management.[8] In December 2011, you obtained a Certificate III in Agriculture[9] and commenced a Certificate III in Horticulture at Swinburne University Wantirna in April 2019.[10] You enrolled for Certificate III modules for 2020.
27 From the age of 18, you were an apprentice panel beater at the Bayswater Panel Shop. You completed about eleven months, but were fired after you crashed a car. You then worked as a gardener for five years.
28 You have been working for Greg Losionek for approximately five years, working at general gardening, landscaping and pruning duties. Mr Losionek is aware of the charges brought against you. He was your employer at the relevant time.
29 You have been drinking alcohol heavily since your accident and for a period of six years from the age of 18 until you were placed on remand, you were drinking alcohol in excessive quantities during nine out of ten days.
30 You have admitted before me to prior convictions. There are six such convictions, involving one court appearance on 19 August 2016. The nature of some of those prior convictions, in particular, the convictions for burglary and theft, are such that they are highly relevant to my task of sentencing you today.
31 Reports by Dr Fiona Zandt[11], Dr Simone Bassi[12] and Dr Kevin Dunne[13] have been tendered. I have read those reports and take the contents into account. I take into account, too, the other material that has been put before me. I refer to the Court Integrated Services Reports one and two, dated 10 December 2018 and 15 January 2019 respectively,[14] and the references by Mr Robin Hooper,[15] Peter Cordia,[16] Greg Losionek,[17] Cheryl Higgins,[18] and Lillian McPherson.[19]
32 You have been in no further trouble since this matter. Greg Losionek, horticulturist, employed you on a casual basis (several days per week) for approximately three years and stated that upon your release he 'would have no problem employing you again'.[20] During the hearing of the plea, your stepfather, mother and sister were present in court. Your stepfather and mother attended the trial and the verdict. I have taken into account the written references provided by your mother,[21] stepfather[22] and older sister[23]. They remain a constant source of support for you.
33 Since this offending, you have taken steps to overcome your addiction to alcohol and have achieved and maintained abstinence from alcohol.
34 Your counsel referred to the bank loan you took out to pay the financial penalty imposed by the court for your previous convictions and the repayment arrangement you made with Mr Losionek, to comply with the court orders.
35 Whilst in custody, you completed a Certificate II in kitchen operations, Certificate II in cleaning, a Certificate I in Access to Vocational Pathways and a Course in Initial General Education for Adults.
36 Having considered the whole of the evidence, which includes the steps you have taken to overcome your addiction to alcohol, the courses you have taken at Swinburne University, the certificates you obtained in custody and the offers of employment, I am, on balance, satisfied that the chances of your rehabilitation are reasonably good, provided that you engage in treatment and are able to remain free of alcohol and drugs.
37 I am bound and do take into account parity of sentence with your co-offender. Fitzgerald pleaded guilty. In relation to the offence of home invasion, Fitzgerald was sentenced on the basis that he was not aware of any knife being present. For the purpose of this plea, and consistent with the jury's verdict and the offender's admissions, you must be sentenced on the basis that you knew that your co-offender had a knife and that he was bringing it into the home. However, the commission of the crime was Fitzgerald's idea. Fitzgerald was the protagonist for the plan, as evidenced by the matters the subject of the other charges and the threats he made to O'Connell.
38 Your criminal history includes offences for burglary, theft, assault protective services officer, drunk in a public place, use obscene language in public place and wilfully damage property. In December 2016, Fitzgerald was convicted of offences which include criminal damage and a series of other summary offences that took place at a railway station.
39 In terms of parity, Fitzgerald pleaded to other serious offences, particularly a threat to kill and stalking. This indicates that your culpability is less than that of your co-offender.
40 You were both 24 at the time of the offending. You were 25 at the time of the trial and verdict and still a youthful offender. I accept your counsel's submission that rehabilitation is an important factor in imposing a sentence.
41 However, as well as those matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
42 Your counsel did not seek to rely on the principles set out in R v Verdins.[24]
43 Your counsel conceded that offences of this nature are serious and aspects of general deterrence, specific deterrence and just punishment have a role to play. Your counsel submitted that the imposition of a combination sentence including a Community Correction Order would assist you, in cementing the steps you have taken to overcome your addiction to alcohol.
44 The prosecution stated that she had obtained instructions and was in a position to say that a combination sentence is within range.
45 As you know, I have sought and received a pre-sentence assessment report in this matter. Would you please stand Mr Larkins.
46 That report indicates that you are considered a suitable candidate for a Community Correction Order. Upon analysis of all the evidence and the submissions made by counsel, I propose to order that you serve a term of imprisonment for nine months, followed by a Community Correction Order for a period of 18 months. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
47 First, the length of the order will be 18 months. Every community corrections order, including the one I propose in this case, contains certain core conditions. They are:
48 The conditions that apply in addition to the mandatory terms are:
49 Do you consent to the making of a community corrections order containing the terms I have outlined?
51 HER HONOUR: Yes, you can hand that to counsel. Thank you. These are without doubt serious offences. In all the circumstances, I have no alternative to the imposition of a custodial sentence on Charges 1 and 3 of indictment J11891295.1. I propose to record convictions on all charges and sentence you to be imprisoned as follows:
Charge 1 - home invasion - to a term of imprisonment for nine months. On that charge, I will also impose a community corrections order that commences upon your release from custody for a period of 18 months.
Charge 3 - theft - to a term of imprisonment of one month.
52 I direct that the sentence imposed on Charge 3, be served concurrently with the sentence on Charge 1.
53 In relation to Charge 1 on indictment J11391295.2, the subject of proceeding CR-19-02432 - possess cannabis - I record a conviction and direct that you be fined $50.
54 I order that the property referred to in the schedule of the disposal order which I have signed this day be forfeited to the Minister. I further direct that the property referred to in the Schedule be placed in the custody of the
Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
55 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 167 days. I direct that such be noted in the records of the court.
56 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed. but for the plea of guilty to the crime of theft. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of two months on Charge 3 of Indictment J11891295.1. Are there any further matters?
59 HER HONOUR: Yes, thank you. I will just sign the community corrections order. The signature of the offender to p.2 of the community corrections order needs to be - - -
61 HER HONOUR: That's all right. Please take Mr Larkins into custody. Adjourn the court.
DPP
Scott Larkins [2020] VCC 15
(2007) 16 VR 269