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County Court of Victoria |
Last Updated: 3 June 2022
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Revised
Not Restricted Suitable for Publication |
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: Burglary, Theft, Arson, Obtaining property by deception.
Catchwords: Guilty plea – set fire to a house in the course of a burglary – 19-year-old 1st offender – family deprivation – COVID benefit of plea
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37; Marrah v The Queen [2014] VSCA 119; Farhan Fariah v The Queen [2021] VSCA 213; Boulton, Williams v The Queen [2018] VSCA 171.
Sentence: 201 days imprisonment, served by way of
pre-sentence detention, and 2-year community correction order.
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APPEARANCES:
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Counsel
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Solicitors
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For the DPP
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D. Cordy
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Office of the Director of Public Prosecutions
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For the Accused
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R. Lawrence
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Camerons Lawyers
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1 Brody Matsen, you have pleaded guilty to:
Circumstances of offending
2 The circumstances of your offending are set out in the summary of prosecution opening[1]. They are agreed facts.
3 You knew Jamie Roberts, Liam Foenander and Riley Trickett. They were 14 and 15 years old; you were 19.
4 They knew Sophia Hrisovergi, who was 13 years old. She lived with her mother and siblings at Parker Street, Shepparton. They also knew the house was temporarily unoccupied.
5 In the early hours of 9 April 2019, the four of you decided to go to the Hrisovergi home knowing no one would be there. You got there around 3 AM. One of you climbed through an unlocked window and opened the back door for the others (Charge 1 - Burglary).
6 Between you, you went through the house and you stole 2 Samsung tablets (Charge 2 – Theft), and put them in your backpack. iPods, laptops, jewellery and cameras were also stolen.
7 According to Foenander, you said you were going to burn down the house so you wouldn’t get caught.
8 You grabbed an aerosol fly spray can from the kitchen and went into a bedroom where you sprayed its contents on a bed and set it alight with a cigarette lighter (Charge 3 – Arson).
9 When the bed caught fire you yelled to the others to “run”.
10 You all went to a local school where you went through the stolen goods and then to McDonald’s.
11 The CFA put out the fire. The house and contents were destroyed.
12 The next day, on 9 April 2019 you sold one of the stolen Samsung tablets at Cash Converters for $80 (Charge 4 – Obtaining property by deception).
13 Later, on the same day, you returned to Cash Converters and pawned the second stolen Samsung tablet for $70 (Charge 5 – Obtain property by deception).
14 On 12 April 2019, police spoke to Roberts who admitted he went to the house with Trickett, Foenander and you and items were stolen. He said you lit the fire.
15 On 15 April 2019, police spoke to Trickett who made similar admissions and on 19 April 2019 police spoke to Foenander, who also made similar admissions.
16 Police had spoken to you on 15 April 2019. When asked about your movements at the time of the fire you said you had been drinking, got a bit too drunk and didn’t remember the night.[2] You said you did not remember going to an address where a house caught fire.[3] You denied being there at the house with your co-offenders.[4] You denied any knowledge of the burglary, the fire or the stolen Samsung tablets.[5] When police showed you the Cash Converters records which showed you had pawned the tablets in your name, you had no explanation other than you must have been drug affected.[6]
17 You were charged and released on bail.
18 On 5 July 2019 police arrested you in relation to an alleged bail breach and other offences. When they interviewed you, you told them your earlier denials of any involvement in the burglary were untrue. You admitted you had broken into the house with others and stolen the tablets. You said, when you offended, you were living rough. You denied lighting the fire.
19 By your guilty plea now you also admit:
(a) you pawned the 2 Samsung tablets at Cash Converters, and(b) you lit the fire.
20 You were remanded in adult custody following your arrest.
21 You have no prior criminal history.
22 However, since this offending you have appeared before the Courts three times.
23 On 21 May 2020, at Shepparton Magistrates Court, your fined $1000, without conviction, for family violence, breach of bail and property related offences. On 10 July 2020, at Shepparton Magistrates Court, for breaching a bail condition, your fined $250 without conviction. On 17 August 2020, your released on a 12-month community correction order for driving and bail offences.
24 You also have a pending matter.
25 On 21 September next you are to appear at the Shepparton Magistrates Court to answer further family violence and driving related offences.
Personal circumstances
26 You were born in December 1999 at Shepparton.
27 You were 19 when you offended; you are now 21.
28 Your personal circumstances are set out in the psychological report of Warren Simmons.[7]
29 You were raised by your mother. You have never met your father who, over the years, has rejected your attempts to contact him. You have an older brother and an older sister.
30 You describe your childhood as “hectic”. You were witness to, and victim of, family violence perpetrated by different partners of your mother. While your mother tried her best to provide for you, your family was poor; at times, you stole clothing and food. Despite the deprivation, you reported a close relationship with your mother and siblings.
31 You went to local schools. During primary school you were diagnosed with ADHD and treated with medication. You struggled and, in year 7, you were moved to a special school. You left in year 10 and went to TAFE. Your reading and writing are weak and you believe you may suffer from dyslexia. Before you were remanded in custody you were undertaking a building and construction course.
32 You had smoked marijuana when were at school. Towards the end of 2017, a friend introduced you to methamphetamine. You were using the drug casually until 2019, when you changed groups of friends and, by the time of your offending, it had escalated to daily use. You have had a period of enforced absence while you have been in custody.
33 Your time in goal has been difficult. As a 19-year-old, it was your first time in custody. Shortly after your imprisonment, you were hospitalised for septicaemia as a result of a spider bite. In mid-2020, you self-harmed. Subsequently, you were prescribed an antidepressant which has made you feel better. You have work as a kitchen billet and have improved your speaking and writing.
34 You were supported by your mother and sister at Court. Your mother has been permitted only one prison visit. You have telephoned her daily. When you are released you will live with her at Mooroopna.
35 Mr Simmons assessed you on 27 November 2020.
36 In his opinion, your traumatic and deprived childhood made you vulnerable to substance abuse and has left you with a social anxiety disorder.
37 To him, you appeared motivated to make changes in your life.
38 In his opinion you would benefit from psychological and drug and alcohol counselling.
Defence submissions
39 Mr Lawrence[8], who appeared on your behalf, submitted your offending was immature with little or no thought as to the consequences.
40 He relied on the following factors in mitigation of penalty:
(a) firstly, your guilty plea for its high utilitarian value[9] particularly during the covid pandemic,(b) secondly, your relative youth,[10]
(c) thirdly, your lack of criminal history,
(d) fourthly, your disadvantaged background, and[11]
(e) fifthly, the hardship of imprisonment, during the public health emergency, for a young, first offender.
41 He submitted I should impose upon you combination sentence incorporating a prison term equivalent to the time you have served and a Community Corrections Order with conditions tailored to your rehabilitation.
Prosecution submissions
42 Mr Cordy, who appeared for the director of Public Prosecutions, submitted your offending, which involved the destruction of a family home, was serious.
43 He submitted, because of the seriousness of your offending, a sentence of imprisonment should be imposed.
44 He accepted, taking into account the mitigating factors in your favour, a Community Corrections Order in combination with a term of imprisonment is within sentencing range.
Consideration
45 Arson, as the maximum penalty of 15 years imprisonment demonstrates, is a very serious offence.
46 Your offending was serious. A home was destroyed.
47 General deterrence and denunciation are important sentencing considerations. A term of imprisonment must be imposed.
48 Current sentencing practices demonstrate a term of imprisonment, without a Community Correction Order, does not always follow.
49 Your sentence is to be moderated to take account of a number of significant mitigating factors in your favour.
50 Your criminal behaviour was immature and naive. You gave little or no thought to the consequences of lighting the fire. You used your true identity to pawn the stolen tablets. All the while you were in difficult circumstances living alone and rough.[12]
51 Your guilty plea, made at the earliest opportunity has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[13]
52 Your childhood social deprivation and abuse is mitigatory. It frequently precedes and often explains and contributes to an offender’s criminal conduct.[14] It is notable, despite your disadvantaged upbringing, you had not broken the law until you broke into the vacant house with your friends.
53 Your youth and previous good character require your prospects of rehabilitation be given significant weight.[15]
54 While you are not to be punished for your subsequent offending or the charges outstanding those matters are relevant to specific deterrence and rehabilitation.
55 A Community Corrections Order can enable the punitive and rehabilitative objectives of sentencing to be served at the same time, even in cases of very serious offending.[16]
56 I have had you assessed for our Community Correction Order and, whilst you breached the Community Corrections Order imposed in July 2020, by further offending and non-compliance, you have been found suitable for another.
57 Overall, I am satisfied a composite sentence of imprisonment and an intensive Community Corrections Order, with conditions to promote your rehabilitation, can achieve all sentencing objectives in your case.
58 You have already spent 298 days in custody; 201 days relate to this proceeding. It is substantial punishment for a young man, who has not been incarcerated previously, made harder by COVID-related restrictions.
59 I am satisfied all sentencing objectives can be achieved without requiring you to serve further time in prison.
60 Because your crimes arose from one episode of offending I will impose an aggregate sentence for all of them.
61 And, because you are to be sentenced for several crimes, I have had regard to the totality principle to ensure your sentence is a proper measure of your overall criminality.
62 Mr Matsen, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
63 Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges arson, burglary, theft and obtaining property by deception, you are convicted and sentenced to 201 days’ imprisonment in combination with a Community Correction Order.
64 The Community Correction Order will commence upon your release from prison.
65 The duration of the order is two years.
66 In addition to the core conditions, I impose the following special conditions:
(a) Drug treatment and rehabilitation;(b) Alcohol treatment and rehabilitation;
(c) Mental health treatment and rehabilitation;
(d) Programs to reduce risk of reoffending;
(e) Supervision; and
(f) Judicial monitoring.
67 Pursuant to section 18(4) of the Sentencing Act I declare you have already served your 201-day prison term by way of presentence detention.
68 While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 2 years and 6 months imprisonment and fixed a minimum non-parole period of 1 year and 9 months.
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[1] Exhibit A.
[2] Record of Interview, Q 96.
[3] Record of Interview, Q 98.
[4] Record of Interview, Q 151.
[5] Record of Interview, Q 431.
[6] Record of Interview, Q 453.
[7] Exhibit 2.
[8] Exhibit 1.
[9] Worboyes v The Queen [2021] VSCA 169, at [35]-[39].
[10] Azzopardi [2011] VSCA 372, at [34].
[11] Bugmy [2013] HCA 37 at [44].
[12] Azzopardi [2011] VSCA 372, at [34]
[13] Worboyes [2021] VSCA 169, [35] and [39]
[14] Marrah v The Queen [2014] VSCA 119, [16]
[15] Farhan Fariah [2021] VSCA 213, [29]
[16] Boulton, Williams [2018] VSCA 171, [47] Azzopardi [2011] VSCA 372, at [34]
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URL: http://www.austlii.edu.au/au/cases/vic/VCC/2021/1245.html