Director of Public Prosecutions v Alexander (a Pseudonym)
[2023] VCC 1234
•13 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT WODONGA
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE ALEXANDER (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 13 July 2023 | |
DATE OF SENTENCE: | 13 July 2023 | |
CASE MAY BE CITED AS: | DPP v Alexander (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1234 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of aggravated burglary, contravening a family violence intervention order, damaging property of threatening to kill, unlawful assault and contravening a community correction order – family violence offending – prior criminal history – youthful offender – intellectual disability – post‑traumatic stress disorder – drug and alcohol use – all sentencing purposes engaged – Application of Bugmy – Application of Verdins – early plea of guilty
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; Lu v The Queen [2018] VSCA 92
Sentence: 33 months imprisonment. Non-parole period of 16 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | KPW Lawyers |
HIS HONOUR:
Introduction
1Mr Alexander[1], you have pleaded guilty to a charge of aggravated burglary, a charge of contravening a family violence intervention order, a charge of damaging property and a charge of threatening to kill. You have also pleaded guilty to the summary offence of unlawful assault. You have also pleaded guilty to a charge of contravening the conditions of a community correction order which in due course I will cancel and resentence you on the charges the subject of the order.
[1]A Pseudonym.
2For all those matters I propose to sentence you to 33 months' imprisonment. I will set a non‑parole period of 16 months' imprisonment and I will declare the 341 days of your pre‑sentence detention, excluding today, as time served under my sentence.
3In doing so I am aware of the maximum penalties for these charges:
(a) Aggravated burglary - 25 years' imprisonment;
(b) Contravening a family violence intervention order where you intended to commit physical harm to the protected person - five years' imprisonment;
(c) Criminal damage - 10 years' imprisonment;
(d) Making a threat to kill - 10 years' imprisonment; and
(e) Unlawful assault - three months' imprisonment or a fine of 15 penalty units.
Circumstances
4The circumstances of your offending in relation to the charges on the indictment and the summary offence are contained in the prosecution opening.
5On 17 November 2021 the Magistrates' Court made a family violence intervention order where the protected persons were Rebecca Barton[2] and her two children of a different relationship. You were the respondent to that order which was served upon you. The order contained two conditions, not to commit family violence, which is an all-embracing condition, and not to damage property or threaten to do so of the protected persons.
[2]A Pseudonym.
6Incidentally, on 8 August 2022 this order was varied to contain more specific restrictive conditions and having much the same effect as the original order. The varied order was served upon you.
6 August 2022
7On 6 August 2022 at about 1.08 pm you sent Ms Barton a Snapchat message, seeking to collect your property. You and she then conversed using Snapchat. What was said is set out in paragraph 10 of the prosecution's opening. It is clear she did not want you to enter her premises. Accordingly, she left a bag containing your property on the front porch of her house.
8About 17 minutes later you arrived at her house, went to the front door, rang the bell and called out to her. She did not answer the front door or otherwise respond. You then entered her house through an unlocked window after removing a flywire screen. You picked up some of your property, including a knife, and then confronted Ms Barton in her bedroom. These circumstances constitute Charge 1, a charge of aggravated burglary.
9You then threatened to 'slice her up', 'bash her', 'slice her throat' and 'stomp on her'. These and the above circumstances constitute Charge 2, a charge of contravening a family violence intervention order intending to cause her physical harm.
10You then asked her for photos of you and her. She gave photos to you which you tore up. You then stabbed the wall and the door with the knife, saying she was next, presumably to be stabbed. She felt threatened by your actions and oddly, only a little scared. It is the damage to the wall and the door which constitutes Charge 3, the charge of criminal damage.
11Ms Barton pushed you out of the bedroom and towards the front door. You slapped her several times and pushed her onto a couch. These circumstances constitute the summary charge of unlawful assault.
12She returned to her bedroom and barricaded herself inside. She contacted her mother who rang Triple 0. The police attended. You saw them and fled. You were arrested nearby. You had thrown away the knife, but it was found by the police.
13At the police station you were not interviewed because you were believed to be substance affected and unfit to be interviewed.
7 August 2022
14You were interviewed the next day. Towards the end of the interview, you looked at the camera and said, 'Just one thing, [Rebecca Barton]. If I ever see you again, I'll cut your fucking throat open, you stupid rat'. This constitutes Charge 4, a charge of making a threat to kill.
Criminal History
15Between 4 July 2019 and 24 May 2022, you have appeared in a criminal court on seven occasions and have been found guilty or convicted of 39 charges. There have been 13 charges in an adult court and 26 in the Children's Court. In 2019 you were sentenced to detention for 26 days. At both appearances in the adult court, you were sentenced to imprisonment. The most recent was in this court and which is the subject of a contravention charge.
16On 24 May 2022 you were sentenced to 11 months' imprisonment and placed on a community correction order of 18 months duration. These sentences were imposed for two offences including aggravated burglary.
17The conditions of the order comprised supervision, community work and four therapeutic conditions. You contravened the order's conditions through failing to attend appointments and reoffending. The extent of your contravention is set out in the report of Sharee Cochrane and Rebecca Linnet dated 16 June 2023.
Supervision
18Upon your release from custody from the May 2022 sentence, you attended the induction appointment with Corrections and enabled their assessment of your level of risk of reoffending. You attended six supervision appointments and failed to attend five other appointments. During the appointments you did attend, you would often say you wanted to return to prison because it was easier.
19You received two warnings from supervisors in July and August of 2022 regarding your abusive behaviour towards your case manager and a compliance review hearing was arranged. This was cancelled due to your remand on 6 August 2022.
Treatment and Rehabilitation
20You were referred to ACSO but did not attend the initial appointment. It was rescheduled but cancelled due to your remand.
21You attended for urinalysis testing on three occasions, twice in July and once in August. The July tests were positive for methylamphetamine, cannabis and on one occasion, amphetamine. The August test could not proceed or could not be determined due to your inability to produce a sample.
22You were required to see your general practitioner to be referred for a mental health assessment. This did not occur.
23You were referred to Forensic Intervention Services for a suitability assessment and you failed to attend the appointment.
Community Work
24You undertook no unpaid community work. You told Corrections of a pre‑existing injury but failed to provide a medical capacity form completed by your general practitioner verifying that fact.
25The authors of the report concluded:
‘[Mr Alexander] has demonstrated an apparent lack of responsibility, motivation, and willingness to complete a community correction order. Furthermore, he demonstrated a lack of insight into his offending behaviour and complete disregard for the law given the alleged further offences were committed during the operational period of the order’.
26The authors recommended the cancellation of the order and resentencing on the original charges. I accept the recommendation. I will cancel the order and resentence you on the charges the subject of the order, which were aggravated burglary and criminal damages. The circumstances of those offences were as follows.
27On 19 March 2021 you and a number of other people, including Ms Barton, went to the victim's premises intending to assault him. You believed he recently had had intercourse with Ms Barton and the girlfriend of another person who was accompanying you.
28When you arrived, you wanted the victim to come outside so you could assault him. An argument ensued with another person inside the house who came outside to calm you down. You, with the others, broke the front window and forced the front door open and went inside.
29The victim escaped through the back door. You and the others discussed about where he had gone, but decided to leave the premises. You were arrested soon afterwards. At the time you were on bail
30When interviewed you admitted attending the victim's premises with an intent to assault him, but did not admit damaging property or entering the house.
Victim Impact Statement
31On 17 May 2023, Ms Barton made an impact statement which the prosecutor has read out this afternoon.
32She trusted you. Your threats have made her feel unsafe. She is constantly afraid of harm. She will not leave her home unless accompanied. She has lost weight. She sleeps badly. She has undertaken some counselling.
33Your spreading lies about her has affected her friendships with others. She is distracted from her children, her life and what she wants.
Personal
34You are now 20. You are the second of three children. You have an older brother aged 24 and a younger half-sister aged six or seven.
35Your early years were dreadful. Your father physically abused your mother daily. He also physically abused you and your brother. The abuse of you was so bad you were rendered unconscious at least twice weekly.
36Then at the age of 11 you found your father dead. He had overdosed on heroin. Owing to your mother's violence to you for the next three years you were cared for by members of your extended family.
37From 14 you moved frequently between the care of your extended family and your mother. While with your mother, you witnessed violence between her and her partner. You left your mother to live with your maternal grandmother briefly, before returning to live with your mother until 2020. You then gained a Department of Housing property. In about 2020 you started living with Ms Barton
38At six or seven you were diagnosed with attention deficit hyperactivity disorder and at eight with an intellectual disability. You completed Year 9 at a special school. You have not been in paid employment since leaving school.
39
You have had two relationships. First with Gemma[3] which lasted four years.
You and she have a son, aged three. Second with Ms Barton whom you met when 17 or 18. There are no children, although there have been miscarriages.
[3]A Pseudonym.
40After the death of your father, you were diagnosed as suffering from post‑traumatic stress disorder. At present, you take an antidepressant. You have attempted suicide on three occasions, most recently in January of 2021.
41Your drug usage follows a pattern commonly seen in this court. You started with cannabis seriously at 10, alcohol at 12, LSD at 14, methamphetamines at 15. At 16 or 17 MDMA, Seroquel and Lyrica. Although receiving drug and alcohol counselling in prison you were not interested in receiving more of this counselling after your release.
42In custody you work as a recreational prison services worker, which your counsel has explained as meaning that you interface with new prisoners in order to explain to them what is going on in prison and the services available. This is a credible thing for you to do.
43Your mother supports you and has been in daily contact with you whilst you have been in custody. On release you expect to live with your brother in Geelong and work with him in his landscaping business. You hope to leave Lorne[4] and your former antisocial associates.
[4]A Pseudonym.
Psychologist
44At the request of your solicitors Daniella Kocic, a psychologist, interviewed you on 18 April 2023. In fact, she had spoken or interviewed you earlier in relation to the proceeding before Judge Maidment.
45On this occasion you undertook a series of psychometric tests. She diagnosed you as suffering from severe cannabis and stimulus use disorders and an opioid related disorder. Arising out of those tests, she noted your previous diagnoses but did not explicitly diagnose you as suffering from attention deficit hyperactivity disorder, post-traumatic stress disorder or generalised anxiety disorder. Nevertheless, owing to the symptoms of PTSD fluctuating, she appears to think you suffer from the disorder. She also appears to think you suffer from ADHD and GAD.
46Again, using another test, Ms Kocic assessed you as a high risk of committing spousal and/or family violence.
47Ms Kocic stresses your age. She believes imprisonment will be for you a substantially greater burden than for someone without your psychological problems.
48As to treatment she recommended you:
(a) receive psychological treatment;
(b) a psychiatric assessment to confirm the presence of ADHD;
(c) a neuropsychological assessment;
(d) counselling for your drug issues;
(e) attendance at a men's behaviour change program; and
(f) are linked with an employment support agency.
49She also raised the possibility of you obtaining a NDIS package.
Discussion
50
There are five sentencing purposes. Each is engaged in your case.
Not unnaturally your counsel stresses your youthfulness and he is right to do so. A detailed statement of the position taken by criminal courts with youthful offenders appears in these passages from Azzopardi v The Queen where Justice of Appeal Redlich said:
'There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct…
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending…
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.'
51Looking at the psychologist's view of your risk of certain reoffending, your reaction to the community correction order and your criminal history, one might conclude your prospects of rehabilitation are poor, but the above quoted principles must inhere my sentencing of you.
Bugmy
52You rely on the observations of the court in the case of Bugmy v The Queen where the court said at paragraph 44:
‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.’
53Given your appalling early life Bugmy rightly applies. The observation at the end of the passage demonstrates your background serves to reduce your moral culpability, but the person you have become points to the need to deter and protect the community from you.
Verdins
54You rely on the propositions 1, 3, 4 and 5 stated in the case of R v Verdins[5]. Proposition 1 relates to moral culpability, proposition 3 to general deterrence, proposition 4 to specific deterrence, and proposition 5 to the effect upon you of a sentence which involves imprisonment. They are as follows[6]:
‘1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health’
[5] [2007] VSCA 102.
[6] Ibid at [32].
55I agree each of those propositions apply to you to have the effect of mitigating your sentences. I would not find, contrary to the prosecution's submission, that your ingestion of drugs at the relevant time would eliminate the applicability of those propositions of Verdins and I take the point made by Mr Kozlowski in quoting from paragraphs 98 and 99 of the report of Ms Kocic. These are relevant to that consideration, that is the consideration of Verdins, in relation to propositions 1, 3 and 4.
Guilty pleas
56Your guilty pleas were indicated and subsequently entered at an early stage of this proceeding. I cannot say they evidence your remorse.
57By pleading guilty you have taken responsibility for your offending. Your guilty pleas have a practical effect of assisting the criminal justice system by making space for those proceedings which genuinely require a trial. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now a guilty plea deserves a greater discount on sentence than would be the case in normal times.
58In this court, many trials are lengthy, some occupying months. Even shorter trials tend to take at least a week. The longer the trial avoided the greater the practical benefit to the criminal justice system, but even a short trial has considerable benefit when one recalls the resources involved in assembling a jury.
59
Your counsel submits primarily a combination sentence for your offences.
This is unrealistic given the limitations placed on the length of imprisonment one can impose. His alternate submission has merit.
Sentence
60On Charge 1, a charge of aggravated burglary, I sentence you to two years' imprisonment.
61
On Charge 2, a charge of contravention of a family violence protection order,
I sentence you to one year's imprisonment.
62On Charge 3, a charge of damaging property, I sentence you to one month's imprisonment.
63On Charge 4, a charge of making a threat to kill, I sentence you to one year's imprisonment.
64On the summary charge of assault, I sentence you to one month's imprisonment.
65The sentence on Charge 1 is the base sentence. Three months of the sentences on Charges 2 and 4 are to be served cumulatively upon the base sentence and themselves. The other sentences are to be served concurrently. The total effective sentence on the indictment is 30 months' imprisonment.
66On the charge of contravening a Community Correction Order, I sentence you to one month's imprisonment. I will cancel the Community Correction Order and resentence you. In fixing the sentences I note the preferred approach identified by the court in Lu v DPP. Your efforts under the Community Correction Order carry very little weight. I sentence you as follows:
(a) aggravated burglary - 16 months' imprisonment;
(b) criminal damage - three months' imprisonment.
67These sentences and the sentence on the contravention charge will be served concurrently. I declare 321 days of your pre‑sentence detention as time served under these sentences.
68Three months of the sentence on the charge of aggravated burglary is to be served cumulatively upon the sentences on the indictment. The other sentences are to be served concurrently upon themselves and the sentences on the indictment.
69The overall sentence is 33 months' imprisonment. I will set a non‑parole period of 16 months' imprisonment.
70I declare that 341 days of your pre‑sentence detention, excluding today, as time served under my sentences.
S 6AAA
71In relation to the charges on the indictment and the contravention charge, if you had not pleaded guilty, but had been found guilty after a trial, I would have sentenced you to total sentence of 48 months' imprisonment.
72It is inappropriate to make a s6AA declaration in relation to the resentencing on the charges arising out of the cancelled Community Correction Order.
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