Director of Public Prosecutions v Ackland (a pseudonym)

[2017] VCC 1623

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN ACKLAND (A pseudonym)

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 26 October 2017
DATE OF SENTENCE:	3 November 2017
CASE MAY BE CITED AS:	DPP v Ackland (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1623

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr I. Pugh	Finn & Pugh Lawyers

HER HONOUR:

1       By February 2016, Justin Ackland,[1] you had been married for 22 years.  You and your wife, Ruth,[2] had had four children together, who by then ranged in age from 19 to nine.  The two oldest had finished school and moved out of home, the younger two were still at school and living at home with you and your wife.

[1] Justin Ackland is a pseudonym.

[2] Ruth is a pseudonym.

2       You and your wife separated in February 2016 and you moved out of the family home.  Your teenage son ended up living with you, whilst the youngest daughter remained in the family home with her mother

3       In August 2016, you went to her home.  You were angry.  The prosecution summary describes you as accusing her of being in an intimate relationship with another man.  I seriously doubt whether, in the circumstances, accusing is the right word.  That suggests being confronted with an allegation of wrongdoing.  By then, you and Ruth had been separated for six months, and you, as it is now revealed, had yourself been in a new intimate relationship for four months.  You took Ruth's phone and scrolled through it to see who she had been in contact with.

4       You pushed her back onto the couch, as she tried to get up and leave.  You called her, the woman you had been married to for 22 years and with whom, together you had conceived and brought four children into the world a "lying whore."  She tried to leave the house to get away from you, but you blocked her way.  She eventually got outside and went to drive away, to get away from you. You followed her out of the house, punching the driver's window as she drove away.  That gives rise to the uplifted summary offence of unlawful assault, to which you have pleaded guilty.    

5       The next day you rang her and again called her a "lying whore".  She told you she was going to report your conduct of the previous day to the police.  She was as good as her word.  You called her back and she told you that she was at the police station and then terminated the call.

6       You then rang your 18 year old daughter and said to her, "If she" meaning Ruth, "gets an IVO, I'll shove it down her throat, whilst I'm beating the fuck out of her.  I'll kill her and then Tom." [3]

[3] Tom is a pseudonym.

7       Your daughter was understandably distressed, deeply distressed by this, and afraid for her mother’s safety.  A measure of the level of her fear that you would harm her mother, was that she called her and told her not to go home.  It is those threats to kill Ruth and the man you believe that she was seeing, that give rise to Charges 1 and 2 on the indictment, of threat to kill.

8       The police were told of the threats that you had made.  Tellingly, at that stage, Ruth, your daughter and the man against whom the threat had been made, did not want any further police investigation of your conduct.  They were prepared to let matters stop there.

9       Importantly, your daughter told the police that she did not want you prosecuted, for fear that that would damage her relationship with you.

10      Notwithstanding their attitude and not surprisingly, having regard to the nature of the threats, the police, nonetheless interviewed you.  Amongst other things, you said this: 

·    You admitted that you had threatened to hurt Ruth and kill Tom; 

·    You said the threat was made in temper;

·    You said it was in relation to Ruth telling you that she was going to sleep with Tom and to take the intervention order out on you;

·    You said you thought your daughter would tell her mother and hopefully persuade her not to get the intervention order; 

·    You acknowledged throwing her phone on the occasion when you had been at the house, but seemed to justify it by saying you owned it, in any event;

·    You agreed with what you described as the "name calling", but denied pushing her;

·    You said you hit the window of the car in frustration, because she would not stop and talk; 

·    You denied shoving Ruth onto the couch, but admitted you did say that you would shove the intervention order down her throat;

·    When asked whether it was your intention to put fear into Ruth and Tom, you said, "Pretty much";

·    You said there was frustration;

·    You said that for the last six months, you had been trying to get back with Ruth.

11      After the interview, police applied, on Ruth's behalf, for an intervention order, an interim intervention order.  A final order was made on 30 August 2016.  That went for a period of 12 months and included prohibitions:

·    In relation to both Ruth and your youngest child, on intentionally damaging any property belonging to them;

·    Attempting to locate, follow them or keep them under surveillance;

·    Contacting them or communicating with them by any means and getting any other person to do that;

·    Approaching or remaining within five metres of them; and

·    Going to or remaining within 100 metres of the home or any other place they worked, lived or attended school.

12      It was only a few weeks later, on 15 October 2016, that in breach of the intervention order, you used your son, the child who was living with you, but who was at the time visiting his mother, to try to flout the intervention order.  Initially by calling him and asking to speak to his mother.   He put her onto the phone and she spoke to you, but again, appears to have taken what I would describe as a conciliatory approach, telling you not to do that again.  The call was terminated but very shortly thereafter you called back, spoke to your son again and again demanded to speak to Ruth.  She had warned you the first time not to call again or she would call the police.  She repeated her warning, and you yelled abuse at her. 

13      Moments after the second call, you banged on the front door.  So it means you must have already been outside.  Ruth told you that she was on the phone to the police.  You left, but shortly after that, you were seen banging on the rear glass door and saying it was Ruth's fault that the family had broken up and that you just wanted to talk.  She moved herself away from your sightline and went into the lounge room.  You then went back to the front door, kicked it open and entered the house.     It is that that gives rise to Charge 3, aggravated burglary and Charge 4, contravention of the intervention order, with intent to cause harm or fear for safety. 

14      Ruth tried to run away from you, but you grabbed her and hit her to the left side of her face.  You dragged her to the ground and she connected with the wall.  Whether she fell or was pushed is not clear.  You held her with your body weight and held her by the hair.  Held her by the hair is an understatement, because ultimately clumps of her hair were pulled out.  Your son was trying to intervene to help his mother and to pull you off her.  You then struck her, in front of the children, to the right side of her face.  It is that combination of that conduct that gives rise to Charge 4 of recklessly causing injury.

15      

Your son ultimately was able to help Ruth to break free and she ran to

a neighbour's house, leaving the children in the house with you.  She was seen to be shaking like a leaf and crying and very distressed, holding the left side of her face and saying her hair was falling out.  When the police arrived, indeed

a clump of hair was seen to have been pulled out and was in her lap. 

16      Police arrived and the children, your youngest daughter and your son, were both deeply distressed.  They told the police that you had gone crazy and that their mother had had to run away.  The police were aware that you were subject to an intervention order and that you had breached it.  You acknowledged immediately that you knew you should not have been there and suggested that they lock you up.  Whether that was said in bravado or remorse, it is hard to tell. 

17      Despite the distress that the children were in and what you had said, the police did not arrest you, even though you were at the home in breach of the intervention order.  It would appear they were not aware at that stage of what you had done inside the house.  It was not much longer after that, that they found Ruth next door.  She was in a deeply distressed state and was holding a cold pack to the left side of her face, with a clump of her hair pulled out and her hair in her lap.

18      Police were also told by the children that after Ruth had run away from the house, you had smashed her phone and her iPad.  That gives rise to Charge 5, of damaging property.

19      As a result of your break-in to the house, there was damage to the front door and a crack in the wall.  The two items of Ruth's that you had smashed, the phone and the iPad, were in different parts of the house, one in the kitchen and one found in the bedroom. 

20      By the time Ruth was examined the next day, although she was still complaining of pain, apart from a scratch, the doctor did not see any further signs of injury. 

21      You were interviewed by the police the day after that.  You said to the police that you were drunk and that you did not remember a lot.  You described what had happened as "arguing" with Ruth on the phone and said that for some reason you had snapped and turned up there, lost the plot and lost your temper.  Given that you were obviously outside the house at the time you were on the phone to Ruth, that is less than frank.  You said to the police that you remembered going through the front door and yelling at Ruth and you remembered the police turning up. 

22      You said you thought you had kicked the door.  You said you had been to the house twice, once with the car, then you had taken the car back to your uncle's place and then walked back around.  You told the police you remembered breaking the phone.  You said you had just got angry and started breaking stuff.  You asserted that you had gone there to see your son.  This was, as I understand it, the child who was living with you and visiting his mother and who you had used in order to try and speak to his mother, contrary to the intervention order.  You said to the police, you did not know why you had done it, you had just flipped out. 

23      So far as the charge of contravention of the family violence intervention order, it is worth noting that your conduct breached four separate conditions of that order, namely contacting your wife, going to and remaining within 100 metres of the home, intentionally damaging property belonging to her and committing family violence against her.

24      On 12 December 2016, you were charged with offences in relation to the initial assault and the threats to kill, those matters that Ruth, your second daughter and the man had initially been prepared not to pursue, as well as the offences relating to the conduct on 15 October 2015.   

25      You indicated your intention to plead guilty to those charges at the earliest possible stage and at committal mention in March 2017, you were committed on a straight hand-up brief.  So it is that the matter came on for hearing in October of this year at Geelong.

26      The objective circumstances of the offending as I have outlined are clearly very serious and the impact, both on Ruth and the children, has been significant.

27      Amongst the factors that point to the seriousness of the conduct, are these:

·    There were three separate incidents. 

·    The initial assault, whilst relatively minor, was frightening enough, first to result in your wife deciding the only way to escape or to bring it to an end was to leave the house, and second, to make a report to the police.  

·    The language you used to her was insulting and disparaging and that is particularly so, as it is now clear from the evidence before me, that you were living yourself, in an intimate relationship with someone else and had been for at least four months previously.  That certainly does not sit comfortably with what you told the police about working for six months to try and reinstate the relationship.

·    Ruth was as equally entitled as you to move on.  On what you told the police, what she had told you, was that she intended to commence a sexual relationship with the man, Tom.  You, by then, had been in, as I have noted, an intimate relationship for at least four months. 

·    To characterise her as a whore, as you did, shows a fundamental disrespect for her.  That of itself is a real concern.  And your disrespect is borne out by your later behaviour to her as well.

·    Another serious or aggravating feature is the involvement of one of the children, your second daughter, in the threats to kill.

28      The fact that your wife, your daughter and the man were all prepared, at that stage, to de-escalate matters, your wife happy to be protected by an intervention order, but without pressing for criminal charges to be laid against you, something that you must have been aware of, also makes your conduct, your subsequent conduct grave.  Your wife and daughter were clearly prepared to work to preserve the relationship between you and your daughter and the other children, and to put that ahead of having you held accountable for your conduct in respect of the first two incidents. 

29      It was less than three weeks after the intervention order was granted that you, in my view, manipulated your son in order to speak to your wife, in knowing breach of the intervention order. 

30      

The immediate break-in after the second conversation, indicates that you were already outside the house.  The break-in and the assault of your wife occurred in the presence of the two younger children, who were obviously deeply distressed.  To be exposed to your anger and violence and putting your son in a situation where he was trying to protect his mother by pulling you off, is also, in my view,

a serious aggravating feature.

31      A psychological report, prepared by the psychologist, Mr Alan Woodward and dated 8 March 2017, together with a report described as an addendum to that psychological report, dated 31 July 2017, were filed the day before the matter was listed for the plea hearing.  It was clear to me, on reading them, that they were in many respects non-compliant with the County Court Criminal Practice Note 1 of 2017, which had come into effect on 1 July 2017.  At my direction, my associate contacted your solicitor and advised him of my view that the report and the addendum were non-compliant and directed his attention to the terms of the practice note. 

32      A further addendum, somewhat confusingly described as the “first addendum to psychological report” and bearing the same date, 31 July 2017, as the original addendum, was provided on the morning of the plea hearing.  To avoid confusion, I will describe the original document described as an addendum and dated 31 July 2017, as the original addendum.  I will refer to the document filed on the morning of the plea hearing, but also the dated 31 July 2017, as the second addendum.  The second addendum differed from the original addendum, only by stating that it was intended to address the practice note regarding expert reports on mental functioning of offenders, by attaching a declaration to that effect the end of the report.  That contained a reference to Mr Woodward’s qualifications, and a statement that he had read the expert witness code of conduct, described as a Form 44A and agreed to be bound by it.

33      It is unclear what was meant by that.  County Court Criminal Practice Note 1 of 2017, does not refer to the expert witness code of conduct.  That is a code of conduct applicable for use in criminal trials, as opposed to pleas.  The content of the practice note is very different from the content of the code of conduct. The deficiencies in the original report, the original addendum and the document labelled "first addendum" but in truth, the second, and the reference to the code of conduct, rather than the practice note in the statement appended to the second addendum, all suggest that there remained a continuing confusion as to what was required, in order to comply with the practice note.

34      In the second addendum, Mr Woodward confirmed that the opinions expressed in his original report had not changed.  He attached a copy of what he said was his original report.  That was productive of further confusion, as the document he annexed was dated 10 March, whereas the document filed with the court and described as the "psychological report", bore a different date, 8 March 2017.

35      As the plea hearing progressed, it became clear that although the second addendum sought to remedy some of the deficiencies in the original report and original addendum, such as the absence of reference to the Mr Woodward’s qualifications, it had not addressed the substantive deficiencies.  In particular, it did not seek to reconcile the differences or even acknowledge the differences between your self-report to Mr Woodward and what was contained in the police summary of events which formed the basis of the guilty pleas to the charges.  That was of concern, as was the diagnosis of adjustment disorder with depressed mood, based on what was said to be your reaction to the breakdown of the marital relationship.  That too, was based on self-report.  It was done without any attempt, it would appear, to consider whether that diagnosis would be different if the facts asserted in the police summary and the witness statements that had been provided to Mr Woodward, were correct.  A further concern was that the report did not set out either the factual foundation for the diagnosis of adjustment disorder, or the diagnostic criteria applied.

36      

Further, it relied on the administration of the DASS tests as the basis for findings of depression and anxiety, without acknowledging the limitations to those tests, namely that they are snapshots measuring symptoms the two weeks prior to the administration of the test and are not to be relied on as the basis for

a diagnosis of depression or anxiety.  Further, the report expressed opinions and drew conclusions which were well beyond the psychologist's expertise and his role in providing a report for the assistance of a sentencing court.

37      Based solely on your self-report, Mr Woodward expressed the opinion that at the time of the offending, you were suffering adjustment disorder with depressed mood, based on your reaction to the breakdown of your marital relationship of 22 years.  He said,

It is likely that Mr Acklands’ behaviour was fuelled by alcohol,                distress about the breakdown in his relationship with his wife,   mixed messages about the relationship which made it more   difficult for him to adjust and ruminative concerns about his and                   his wife’s infidelities.

38      Although there was passing reference into the psychological report to the fact you had now moved on and had re-partnered, it was only when your current partner gave character evidence on the plea that it became clear that you had been living with your new partner, in what was apparently a committed intimate relationship, since April 2016.  That is, four months before the first assault, where according to what you told the police, you were angered because your wife told you that she was planning to commence an intimate relationship with someone else and where, as a result, you had called her a lying whore.  And six months before the third incident where, according to what you told the police, you were distressed because you had been trying to get back together with your wife for six months.

39      As a result of that information about the nature and duration of your new relationship, I adjourned the plea part-heard so that your counsel could consider his position.  It was quite clear that he was unaware that you had been in a committed relationship with your new partner for between four and six months before the offending behaviour began.  The plea had originally put on the basis that after the offending behaviour, you had moved on and therefore you posed no threat to your former wife or the children.

40      On the return hearing, a further report was provided by Mr Woodward.  This he described as the third addendum to the psychological report.  It bore the date of 23 October 2017.  In that third addendum, Mr Woodward identified the purposes of the addendum as to provide factual information to support his diagnosis of adjustment disorder, to offer further information which may help to clarify your relationship with your new partner, to offer further clarification of your explanation of the offences and to readdress the practice note regarding expert reports on mental functioning of offenders.  This addendum in the statement annexed to it, did reference County Court Criminal Practice Note 1 of 2017, substituting that for the reference to the expert witness code of conduct which had appeared in the second addendum.

41      As he had in his second addendum, in the third addendum, Mr Woodward confirmed that the original diagnosis expressed in his original report had not changed.

42      It is clear that most of what Mr Woodward set out in the third addendum in relation to what he described as further clarification of your relationship with your current partner, was based on the evidence adduced at the plea hearing.  That was, of course, well after he had formed his opinion and written his original report, the original addendum and the second addendum.

43      

Mr Woodward also set out some extracts from his clinical notes in relation to the account given by you in explanation of the offences.  It was not entirely clear whether the information that he set out was obtained during the initial consultation or after.  However what was confirmed again, was that

Mr Woodward had formed his diagnosis of adjustment disorder attributable to the breakdown of the marriage, by the conclusion of his first consultation.

44      Mr Woodward, in the third addendum, observed that the account given by you in respect of each set of offending, was vague in detail and had omitted salient facts, such as in relation to the first incident, pushing Ms Ackland down onto the sofa and calling her a lying whore.  In relation to the third incident, saying that you had little memory of the incident and attributing your behaviour and the lack of detailed memory to your alcohol consumption.  You acknowledged shoving your wife, yelling at her and leaning over her, but told Mr Woodward you did not recall hitting her.  You acknowledged that the police had said you had kicked the door in and assaulted your wife, but you were silent as to whether you accepted that you had done so, or could recall doing so.

45      

Not surprisingly, having regard to this information contained in the report and now three addenda, the prosecution required Mr Woodward to attend for

cross-examination.  In cross-examination, Mr Woodward confirmed his diagnosis of adjustment disorder and confirmed his opinion that the cause of it was the break-up of the marriage and your attempts to reinstate it. 

46      Mr Woodward acknowledged that he had relied solely on your self-report, not only for the circumstances of the offending, but for the attribution of the cause of what he had diagnosed as adjustment disorder.  He said that he had considered an alternative or differential diagnosis and that the alternative diagnosis that he had considered was major depressive disorder.  It is abundantly clear, he did not turn his mind to whether something as simple as jealous rage was the explanation for your behaviour.  Mr Woodward's evidence as to his failure to take into account the fact that you had moved on and were in a new relationship by the time of the commission of the offences, was in my view, entirely unsatisfactory.

47      Similarly, his evidence in relation to his reliance on your self-report for the circumstances of the offending and his failure to seek in any way to reconcile it with the police account provided to him, was entirely unsatisfactory, and bears adversely on the weight to be given to his diagnosis.  I considered Mr Woodward to be evasive about what material he actually had from the police or from your solicitor in relation to the circumstances of the offending.  It became clear that he had at least the sheet detailing the charges, the police summaries or brief heads and the two statements made by Ruth.  But it is clear that he made no effort to confront you with the differences between your account and that contained in the police evidence, or to consider at all whether the evidence in relation to the time at which you had formed a new relationship was relevant to his diagnosis of adjustment disorder, or the cause of it. 

48      Ultimately Mr Woodward acknowledged that what he noted you had told him in counselling sessions about the positive benefits you considered flowed from your new relationship, meant the new relationship could well have been a significant factor to take into account in assessing whether you were suffering from adjustment disorder at the time of the offending and if so, what was the cause for it.

49      

However, it turns out that is probably ultimately of little moment, as

Mr Woodward also frankly acknowledged in cross-examination that there was no causal connection between the adjustment disorder and the offending behaviour for which I must sentence you.  Mr Woodward said that whilst they coincided in time, there was no causal connection.

50      As a result of the combination of the deficiencies in the report that I have outlined and those concessions, I consider that there is nothing in the report, as qualified by the various addenda, or Mr Woodward’s oral evidence which provides any explanation for any psychological condition which explains or mitigates the offending, or brings into play any of the limbs of Verdins.

51      

Similarly, I am not prepared to rely on your self-report to Mr Woodward as to the extent to which you were using or abusing alcohol at the time, and any attribution of the offending behaviour to that.  Whilst alcohol may have played

a part in disinhibiting your behaviour, it is no excuse or mitigation.

52      As I have already noted when the plea, when first presented, was put on the basis that the explanation for the offending was, consistently with what you had told Mr Woodward and the police, distress over break-up of the marriage, a desire to reconcile and a belief that the other man was standing in way of that.

53      The evidence and materials placed before me on the plea, make it clear that that is simply not the case.  It is clear that at time of offending, you were not still single and trying to reinstate the relationship.  You were not despairing because your wife had moved on, or indicated that she was intending to see someone else, or commence an intimate relationship with someone else.  You were the one who had moved on.  You had been in a relationship with your new partner almost since the time of separation.  You had been living with her for four months.   You had, with your new partner, submitted to an assessment by DHHS, so your partner’s daughter could be placed with you.  That is, the two of you.  Correspondence from DHHS indicated that the daughter had not, in the time before that, been living with her mother and your presence in the household was taken to be a significant factor in giving the child and DHHS a sense of confidence that the placement was going to be a safe and proper one for the child.

54      All of this leads me to the conclusion that the only rational explanation for your offending behaviour is jealous rage.  Despite the fact that you had moved on, you would not give your wife the same autonomy over her life that you were giving yourself, and the autonomy that she deserved and was entitled to.  You subjected her and your children to three episodes of ugly, threatening and violent behaviour.

55       It is clear therefore, that subject to considerations personal to you, general deterrence, denunciation and just punishment are significant features to be addressed in sentencing.

56      Marriages do break up.  People do move on.  It is well-known and well documented now that women are most at risk of threats and violence from an intimate partner after a relationship has come to an end.  Men must understand that the women they have been in relationships with have as much right to autonomy as they do.  If someone seeks to threaten a woman, to attack her sense of personal safety and to threaten to, or inflict physical violence on her because the relationship has come to an end or after the relationship has come to an end, or when they form a new relationship, they must understand that they will be punished.  If they break into their homes, damage their property, physically injure them and assault them and threaten them, if they flout court orders imposed in order to protect them, the court must impose a punishment that will defend the autonomy of that partner to act in a way that she considers to be right for her.  

57      You and men like you must understand that you cannot treat your partners as chattels, that you cannot on the one hand re-partner yourself, whilst at the same time, calling your former partner a whore for contemplating doing exactly what you are doing.  If you use threats and violence against her, break into her home, a place she should feel safe in, intending to assault her and put her in fear, that the sentence must serve as a deterrent to you others like-minded from acting in such a way.

58      

Recent decisions of the Court of Appeal make it very clear that those who commit confrontational aggravated burglaries are looking at terms of imprisonment and substantial ones.  And had it not been abundantly clear before, it is very clear now that a confrontational aggravated burglary committed against an intimate partner, or former intimate partner, is no less serious than a confrontational aggravated burglary committed on a stranger, or someone known to the perpetrator, but who is not an intimate or former intimate partner.  In my view there are reasons why aggravated burglaries committed on intimate or former intimate partners, can be worse than aggravated confrontational burglaries committed in other circumstances.  That is because of the contrast between the shared life the couple had previously had and the breach of that sense of trust and safety coming from someone with whom they had shared the intimacy of

a life and a bed.

59      It is important, therefore, and I need to make this very clear to you, that Ruth is in no way responsible for the offences that you have committed against her. It is not she who determines the sentence, but the court.  She is not to be blamed for the charges being laid or for the fact that you are being sentenced.  You, your partner and all the children, must also understand and accept that.  It is telling in my view that after the first two incidents, Ruth did not want you charged, she simply wanted a court order, an intervention order, to keep her safe and to make you realise that you could not treat her the way you had.  There is no tone of venom or vindictiveness in either of her victim impact statements.  She speaks well of not wanting to stand in the way of restoring a relationship with those of your children whose distress at your behaviour has led to distance and alienation.  And of her hope that you will be able to restore a relationship with them.

60      What Ruth says in her victim impact statement, not only speaks well of her, by also speaks well of you and the relationship that you had had before it broke up. 

61      What other information is there about the sort of person you generally are?  There are many things that count in your favour.  You are 41 years of age and there is no evidence before me that there was violence in the relationship before it came to an end.  You have no criminal convictions of any sort and nothing pending.  You are entitled to have taken into account in your favour the fact that you had reached the age of 41 without coming to the attention of the courts. 

62      You have a very good work history and have, until recently, been in steady employment.  The interruption to that in recent times is due to external circumstances, rather than any fault of yours.

63      

Whilst you reported increased alcohol consumption over the period of offending, it would appear that alcohol and drugs have not blighted your life in the past and are not a problem now.  Therefore there is nothing to stand in the way of

a favourable assessment of your prospects for rehabilitation, because of substance abuse.

64      You have formed a new relationship and one that again appears to be unaffected by violence.  I have already noted that you had been assessed by DHHS as providing a significant protective factor influencing its decision to allow your partner's younger daughter, a child in her teens, to be placed with her mother.  I am told the DHHS, in making that assessment, was aware of the pending charges.

65      It would appear that the final episode, followed by the laying of the charges in respect of all three episodes, did finally bring you to a belated realisation that your conduct was unacceptable.  There is no evidence there has been any further contact with or any threats made to Ruth.  The 12 month intervention order has expired and she has not sought a renewal of it.  That, together with the tone and content of her victim impact statements, particularly her second, indicates that despite her distress at your behaviour, she too is rebuilding her life, her confidence and working on having her sense of safety restored.

66      You have pleaded guilty and you did so at the earliest opportunity.  Through your counsel, you proffered an apology to your wife at the commencement of the plea.  Despite what appears to me to be the self-serving and self-pitying account given to Mr Woodward and to some extent, a victim blaming account given to him, I am satisfied that your pleas of guilty, not only have utilitarian value, but in the circumstances, support other evidence of remorse.  I accept that you are genuinely remorseful for your conduct and I take that into account also.

67      I consider that your prospects for rehabilitation are good.  You have the protective factors of absence of mental illness, personality disorder, substance abuse or intellectual disability, counting in your favour.  You have that good work history and a good work capacity.  You have, I accept, a commitment to restoring relationships with your children and a commitment to leaving your former wife alone.  Although some weight, I consider, needs to be given specific deterrence, you have demonstrated by your conduct since the third episode, a respect for the law and for your former wife’s autonomy, that means the weight to be given to specific deterrence is tempered.

68      A large number of testimonials were provided.  It is clear that you are held in high regard by family, friends and work colleagues and that all people who wrote the testimonials, expressed the view that your behaviour was out of character. I also take that into account in your favour.

69      I take into account and moderate the sentences also because you come before the court at the age of 41 as a first offender.  For someone of that age to find themselves in the serious trouble that you now find yourself and facing imprisonment for the first time, is something that clearly will make imprisonment more onerous and I take that into account. 

70      

I was concerned, as I told Mr Pugh, at what I considered to be a level of victim blaming in the account that you gave Mr Woodward and in some of the testimonials.  It is my view, despite what I said then and without detracting from what I said about my assessment of your prospects for rehabilitation and the relatively low weight that needs to be given to specific deterrence, that

I consider you may well benefit from participation in a men’s behavioural change program and recommend that those responsible for your custody and your release, consider that.

71      Having regard to the seriousness of the offending and notwithstanding those many positive things counting in favour, it is clear that no sentence, other than one requiring the imposition of a term of imprisonment, is appropriate in all of the circumstances.

72      

Despite what has been said by the Court of Appeal in relation to what might be seen to be yardstick terms of imprisonment for confrontational burglary, including confrontational burglaries involving intimate partners, I have moderated the sentence for aggravated burglary by reason of the factors that

I have identified and which count in favour.  I have also left what I consider to be a considerable gap between the head sentence and the non-parole period, reflective of what I have said of your good prospects for rehabilitation, those factors counting in your favour and the importance of ensuring that you have

a supervised and integrated return to the community. 

73      Could you now please stand.  

74      Justin Ackland, on all charges to which you pleaded guilty, you are convicted.

75      On the charge, the uplifted summary offence of unlawful assault, you are sentenced to be imprisoned for a period of one month.

76      On Charge 1  of  threat to kill, you are sentenced to be imprisoned for a period of six months.

77      On Charge 2  of threat to kill, you are sentenced to be imprisoned for a period of six months.

78      

On Charge 3 of aggravated burglary, you are sentenced to be imprisoned for

a period of four years.

79      On Charge 4, contravene a family violence order, you are sentenced to be imprisoned for a period of 12 months. 

80      On Charge 5 of recklessly cause injury, you are sentenced to be imprisoned for a period of 18 months.

81      

On Charge 6  of damage property, you are sentenced to be imprisoned for

a period of one month

82      The sentence on Charge 3 is the base sentence.

83      

I direct that one month of the sentence on the uplifted summary offence; three months of the sentence on Charge 1; three months of the sentence on

Charge 2; two months of the sentence on Charge 4; and six months of the sentence on Charge 5, be served cumulatively upon that base sentence and upon each other.   

84      That makes a total effective sentence of five years and three months.

85      I declare that you are to serve a period of two years and six months before being eligible for parole. 

86      I declare that you have served eight days of pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. 

87      I make the forensic sample order sought.

88      I make the compensation order sought.

89 I declare, pursuant to s.6AAA of the Sentencing Act 1991 (Vic), that but for your pleas of guilty, you would have been sentenced to a total effective term of eight years, with a non-parole period six years.

90      Are they all the orders that are required to be made?

91      MR BOURKE:  Yes, Your Honour. 

92      HER HONOUR:  Was the arithmetic correct?

93      MR BOURKE:  Yes, Your Honour.

94      HER HONOUR:  Yes, thank you, could you remove Mr Ackland please. 

95      Stand down.

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