Director of Public Prosecutions v Alexander (a pseudonym)

[2021] VCC 701

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLIFF ALEXANDER (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2021
DATE OF SENTENCE:	27 May 2021
CASE MAY BE CITED AS:	DPP v Alexander (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 701

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Pleas of guilty - Aggravated burglary - Intentionally causing serious injury - Attempted arson -  Make threat to kill - Intentionally damaging property - Summary offence contravention of a Family Violence Intervention Order -  Relevant criminal history - Victim re-victimised – Offences occurred in circumstances of previous violence against same victim – Victim too distressed to make Victim impact Statement – History of alcohol and drug abuse – Tumultuous upbringing with profound deprivation

Cases Cited:Filiz v R [2014] VSCA 212 at [21]; Cotham v R [1998] VSCA 111; DPP v Johnson (2011) 35 VR 25; Marrah v R [2014] VSCA 119; Bugmy v The Queen 249 CLR 571

Sentence: Convicted and sentenced to 8 years’ imprisonment with a non-parole period of 5 years’ imprisonment – Pre-sentence detention of 311 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Solicitor for Public Prosecutions
For the Accused	Mr D. McGlone	Adrian Paull Criminal Law

HER HONOUR:

1Cliff Alexander[1], you have pleaded guilty to one charge each of aggravated burglary, intentionally causing serious injury, attempted arson, make threat to kill and intentionally damaging property as well as the summary offence of contravention of a Family Violence Intervention Order. 

[1] A pseudonym.

2The maximum penalty for aggravated burglary is 25 years' imprisonment; for intentionally causing serious injury, 20 years' imprisonment; for attempted arson, make threats to kill, and criminal damage, 10 years' imprisonment; and for the summary offence, 2 years' imprisonment.

3In sentencing you, I must have regard to the maximum penalties as these reflect the seriousness with which Parliament regards each of the offences.

4Your offending was opened by the prosecution as follows:

5I was told that you were 50 years old at the time of the offending and you are now 51. 

6You were living in Horsham, next door to the victim, with whom you had an
on-again-off-again relationship over a seven-year period.  At the time of the offending, you were not in a romantic relationship with her.

7I was told that there had been violence in this relationship in the past. 

8On 15 July 2020, you moved back in with the primary victim to help her after a recent health incident.  The Matthews[2] family were next door neighbours to the victim and you, having lived at their address for about three years.

[2] A pseudonym.

9On 9 January 2019, a final Family Violence Intervention Order had been granted in the Horsham Magistrates’ Court.  The order expired on 19 January this year and the conditions of the order included that you were not to commit any family violence or to intentionally damage property or to go to or remain at the victim's address if alcohol had been consumed in the preceding 12 hours and you were not to consume any alcohol at her home.

10On 19 July 2020, you and the victim attended at the victim's daughter's home where you both consumed alcohol.  You both then returned to the victim's home where you continued to drink alcohol.  The victim had about eight cans of Carlton Draught throughout the day and was tipsy but not drunk.  You had been drinking all weekend and had also used marijuana on the day of the offending.

11The victim was sitting at the kitchen table and you walked into your bedroom.  When you returned, you commenced hitting the victim and screaming at her.  You dragged her down the hallway and the victim thinks she blacked out.  You dragged her along the ground and threw her up against a wall, spitting on her.  You repeatedly kicked and punched her. 

12You said to the victim, 'Today is the day I am going to kill you'.

13The victim managed to escape through the front door.  She ran to the Matthews' home.  Their 30-year old son and 11-year old grandson were at their home at that time.

14At about 7:00pm, Mr Matthews heard loud banging on his front door and opened it to the primary victim who collapsed in the hallway, yelling, 'Don’t let him get me'.  Mr Matthews saw that the victim was bleeding from the back of the head.  You were about 2 metres behind her.  You pushed your way through the front door.  Mr Matthews tried to stop you from entering by holding onto the front door handle with his right hand and the door jamb with his left hand.  He tried to use his chest to prevent you from getting past him.  However, you were able to enter the hallway.  You kept repeating, 'I'm going to get her', and kicked the victim, who was lying on the floor.  You tried to drag the victim out of the house.  You were screaming at her that you were going to finish her off and she was not going to live.  Mr Matthews managed to push you out the front door and immediately locked the screen door.  The altercation inside his house lasted for about 2 ½ minutes.

15Mr Matthews could smell alcohol on your breath and described you as, 'Looking like (you were) in another world'.  This was consistent with the victim’s observation of you when you first commenced assaulting her.  You could be heard yelling outside the front of the Matthews' house.  You then returned to the victim's home where you continued to yell. 

16You proceeded to pour lawn mower fuel throughout the house and over yourself.  You soaked a black pyjama top in accelerant and attempted to light the fluid with a lighter.  However, it would not ignite.  You also smashed the victim's mobile phone and placed it in a bin outside.  This conduct gives rise to the attempted arson and criminal damage charges.

17An ambulance was called.  Mr and Mrs Matthews helped the victim who kept repeating that you were going to kill her.  They observed blood spreading onto a pillow which they had used under the victim's head.

18Police arrived at about 7:30pm.  The primary victim told police that she had been punched by you multiple times and that you had told her that you were not going to stop until she was dead.  She was unable to move because of the pain she was in and was shaking uncontrollably.

19Police then approached the victim's home, where you could be heard yelling.  They asked that you leave the premises, however, you replied that the police could come in and fight you.  You said, 'You’ve got your weapons, I've got my weapons', and you also said, 'Come on in, cunts'.  A strong smell of petrol was coming from the address.  You told police that you had poured petrol everywhere.  Police managed to observe you inside the house and saw you smoking a cigarette with a container of petrol nearby, as I understand it.  The Country Fire Association was called. 

20Police continued to engage with you over a number of hours in an effort to negotiate a peaceful resolution.  You told police, 'That cunt called me a rock spider, get fucked', and you also said, 'Come on in you cunts, you will get it', and, 'I will light you up you weak cunts'.  You continued to drink alcohol and appeared intoxicated.  At one point you could be seen with a small silver knife in your right hand.

21Expert police negotiators were called, and you were ultimately arrested inside the house at 1:52 am.

22The victim was taken to Wimmera Base Hospital.  She had suffered a broken collar bone, four broken ribs, bruising on her elbow and five staples to the back of her head.  She had to return to hospital on multiple occasions to have the staples removed and further treatment.  She underwent surgery for her broken collar bone on 8 September 2020 where implants were inserted.  Her fracture was expected to be fully healed in about three to six months from the date of surgery.

23You were interviewed by police and made full admissions, saying:

24That you assaulted the victim and chased her next door where you attacked her again by kicking her.  You said you went back to your house and continued drinking then grabbed petrol from out the back and poured it everywhere, even on yourself.  You said you were going to light it, but it would not light.  You even had the lighter down to it.  You had taken a handful of antidepressant tablets then lay down.

25You said you got into an argument with the victim because your previous partner had alleged that you were a rock spider.  When the victim asked you whether you were a paedophile, you lost it and attacked her.  You said you went mental. 

26You said that you just wanted to kill her, and you could see yourself doing it.  You remembered having the victim on the ground and dragging her along the floor, throwing her up against the wall, kicking her and sitting on her.

27You told police that there were parts you could not remember but you were beating her the whole time.  You said that you just attacked her and could not stop yourself.  You could see yourself dragging the victim around and hitting her but could not stop.  You said that you tipped the fuel around everywhere throughout the house as you wanted to set fire to the house with you in it.

28You said that you knew that you were not able to be at the victim's house and consume alcohol. You thought that the victim would have been in agony because you were beating her. 

29Mr Alexander, your offending is most serious and calls for a punishment which is just in all of the relevant circumstances and your conduct must be appropriately denounced. 

30You behaved in an abominable fashion towards the primary victim who was completely defenceless.  You were very well aware that you could not be consuming alcohol in her presence, much less being intoxicated to the level that you were.  Your behaviour was terrifying and did not abate insofar as the victim was concerned, until the Matthews most bravely locked you out of their home.    Further, the primary victim was attacked in her own home where she was entitled to feel safe.  It was vicious and sustained to the point where at one stage the primary victim thought she had passed out.  It is a matter of aggravation that you spat on the victim during the course of the attack upon her, which was a disgusting thing to do. 

31Further, your offending was not out of the blue or an isolated outburst – rather, it occurred in the context of previous violence towards the victim. In assessing the seriousness of your offending, I have factored in that at the time you offended you were subject to a final Family Violence Intervention Order which had been imposed on 9 January 2019.  Despite this, you committed the offences before me in breach of that order.  Having said this, I am well aware that there is a separate summary offence to which you have pleaded guilty in respect of breaching the Family Violence Intervention Order and I have been careful not to double punish you.  However, I have also factored in that your offending occurred in the context of family violence which the Court of Appeal has said will attract serious consequences and even harsher penalties where this involves the breach of an order which exists for the victim's protection.  (Filiz v R [2014] VSCA 212 at [21]; Cotham v R [1998] VSCA 111 at [14]; DPP v Johnson (2011) 35 VR 25, pp34‑6 [38] – [49] per Redlich JA.). As the prosecution submitted, family violence in Australia is a serious problem and sentencing for family violence offending must convey the clear message that male partners have no right to subject their female partners to threats or violence. In support of that proposition is (Marrah v R [2014] VSCA 119).

32Also, the Matthews, secondary victims in this matter, they were also entitled to feel safe in their home and to keep the primary victim safe, but you violated the sanctity of their home, with all of those who were living there.

33Even then, you placed not only yourself but others at significant risk when you doused yourself and the next-door house in petrol, seeking to set fire to yourself and the house.  At the very least, police and emergency services were subjected to the threat of your actions in this regard, as they were tasked with having to arrest you and deal with the threat that you would ignite the property. 

34The injuries that you inflicted on the primary victim were most concerning – not only physically, but, no doubt, psychologically.  There is no victim impact statement, but it takes no imagination to know that your threats to kill the victim, in combination with your relentless attack upon her, would have been terrifying.  I was told that the reason that the victim did not make a victim impact statement was because she was too distressed to do so.  Although her physical injuries, with surgical intervention, will eventually resolve, it is not possible to know what the lasting effects of the ordeal that you subjected her to will have on her wellbeing. I have not speculated in this regard, in the absence of evidence.

35You have a relevant criminal history and indeed, one which concerns the victim.  Therefore, you have chosen to re-victimise her, which is of grave concern.  The conviction for contravening the Family Violence Intervention Order in February 2020 occurred in the context of you being alcohol affected at the victim's home in October 2019.  I was told that an Interim Intervention Order was in place at the time.  On that prior occasion you were alcohol affected and told the victim that you were going to, 'Smash (her) head in', and that, 'This time’ (you would) not stop'.  You were on an adjourned undertaking with respect to these previous offences at the time of the offending now before me.

36You also have prior convictions for offences of violence in Queensland in 1999, in South Australia in 2014 and in New South Wales in 2017.  This does not bode well for your prospects of rehabilitation.  Indeed, your current offending marks an escalation in your criminal behaviour, despite various dispositions in the past which gave you a chance to change your ways.

37I take into account your background which is a most unfortunate one. 

38I understand that you are from a large Samoan family, most of whom you no longer see.  You were brought up in New Zealand and moved to Australia after completing high school.  Unfortunately, your childhood in New Zealand was marred by abuse and exposure to violence.  I was told that you were sexually abused when you were only seven years old by a family friend and when you disclosed that this had happened, it led to tumult in the family and a rejection of your allegations.  You have witnessed deaths by violence when you were only eight years old.  You commenced using cannabis when you were 13 and by 15 you were smoking cannabis daily.  You commenced abusing alcohol when you were 13 and had become a problem drinker by the time you were 18. 

39You moved to Australia when you were 17 years old.  You initially went to Sydney to visit one of your sisters who was working there.  You secured a job as a storeman and packer.  Your mother had expressed the wish that you not return to New Zealand.

40After living in New South Wales for about two years you moved to Queensland where you worked in construction and did some farm work.  You remained an isolated individual although in constant employment.  You could remain sober for months at a time but would periodically engage in binge drinking, which would then lead you into trouble with the police.  You lived in Innisfail, Queensland for about 25 years.

41You met Rosa Cross[3] when you were living in Innisfail about seven to eight years ago.  She became a considerable emotional support during a number of significant tragedies in your life.  Firstly, your partner of 10 years died from bowel cancer.  Your mother, I was told, died five years ago.  In conference with your barrister, you described Ms Cross as your only friend.  After your mother died, you found life a struggle and would binge drink more often.  Subsequently you moved to Victoria with Ms Cross.

[3] A pseudonym.

42It was submitted that your upbringing gave rise to the principles set out in Bugmy v R 249 CLR 571, in that it was said that you had suffered the effects of profound deprivation which had not diminished over time such that these ought be given full weight in determination of an appropriate sentence.

43I am satisfied that this is the case and I reduce your moral culpability fairly substantially and have made appropriate reductions in relation to other relevant sentencing principles.  However, the other aspect of this is that I must be concerned for your prospects of rehabilitation and protection of the community.

44In sentencing you, I have taken into account the report of Mr Cummins, psychologist, dated 12 April 2021.  Certainly, it would appear that in your alcohol fuelled state, you perceived that Ms Cross had touched a raw nerve when she asked you about being a paedophile.  You perceived this as being a suggestion that you were, and this triggered the ferocious reaction thereafter.

45I accept that the aggravated burglary was not planned and was of brief duration; also, there is a lack of circumstances of aggravation which one often sees with this kind of offence.  Having said this, the frightening aspect is that your determination to further attack the victim, not only involved her, but you were prepared to subject the Matthews to the ferocity of your behaviour when you forced entry into their home where, as I have said, they were entitled to feel safe and keep you out. 

46I allow for a significant discount in the sentence that you would otherwise receive because of your plea of guilty being entered at an early stage.  In doing so, you saved the witnesses, especially the victims, the time and trauma of giving evidence and you saved the community the time and expense of contested proceedings.  In your case, you made full admissions to the police which showed an acceptance of responsibility and you have shown a willingness to facilitate the course of justice, in the cold light of day.  You have also expressed remorse for your actions.  I accept that you are remorseful and have been able to express appropriate insight.  The problem is that you have reoffended against the same victim at a heightened level such that your expressions of remorse and insight need to be gauged against this background.  The sad fact of the matter is that you and alcohol simply do not mix and your troubled background, in combination with intoxication, turns you into something of a monster.  It remains to be seen whether you are able to overcome your alcohol problems and also deal with the underlying issues of your deprived background which has in some ways hard wired you to behave in the way that you have. 

47In sentencing you, I have factored in that you are likely to face deportation upon your release, which will make time in custody more difficult, as you will have the anxiety of this hanging over your head.  Further, in your case, deportation would mean disconnecting from this country to a place where you are not really familiar as you have made Australia your home.  I make further allowance for the hardship that you have and will suffer due to the COVID‑19 restrictions in the way set out in your counsel's submissions and which may well be put in place from time to time.

48In all the circumstances, I assess your prospects of rehabilitation as guarded. If not for the principles in Bugmy, I would have placed fairly strong weight on specific deterrence and very strong weight on general deterrence.  I make a fairly solid reduction in the weight that would otherwise attach to these principles, because of your severely deprived upbringing.  I am concerned for the protection of the community, albeit that it would appear that you may no longer be living in the Australian community upon your release however, this is not a certainty and in the meantime, you will be living in the gaol community.  Therefore, I place fairly strong weight on protection of the community.

49Your counsel has conceded on your behalf that a substantial term of imprisonment is warranted in your case and the prosecution submit that this is appropriate. 

50I have had regard to sentencing practice insofar as I can but bearing in mind that this is but one sentencing consideration.

51You are convicted of each of the offences and sentenced as follows:

52Charge 1-          3 years' imprisonment

53Charge 2-          6 years' imprisonment; this will be the base sentence

54Charge 3-          3 years' imprisonment

55Charge 4-          3 years' imprisonment

56Charge 5-          18 months' imprisonment

57Summary offence of contravention of a Family Violence Intervention Order:    12 months' imprisonment

58I direct that  6 months from the sentence on Charge 1 and 8 months from the sentences on Charges 3 and 4, plus 2 months from the summary offence, be served cumulatively with each other and with the base sentence but that otherwise the sentences are to be served concurrently.

59This produces a total effective sentence of 8 years imprisonment and I direct that you serve 5 years before becoming eligible for parole.

60If not for your pleas of guilty I would have sentenced you to a total effective sentence of 10 years' imprisonment with a non-parole period of 7 years.

61I declare that you have already served 311 days by way of pre-sentence detention, which will be deducted from this sentence.

62Is there anything arising, Ms Baxter?

63MS BAXTER:  No, Your Honour. 

64HER HONOUR:  Mr McGlone?

65MR McGLONE:  No, Your Honour.

66HER HONOUR:  All right.  Now, Mr McGlone, did you wish to have a word with Mr Alexander before we disconnect the transmission?

67MR McGLONE:  Yes, just a brief word, Your Honour.  I am planning to have a more fuller conference with him later, but a brief word would be appreciated.

68HER HONOUR:  All right, thank you.  Well, my tipstaff will accommodate you in that regard.

69MR McGLONE:  Thank you, Your Honour.

70HER HONOUR:   If you could just let him know via perhaps the chat mode, or by telephoning him, whatever is the arrangement, so that he knows when to disconnect the transmission.

71MR McGLONE:  I will do, thank you, Your Honour.

72HER HONOUR:  All right.  Yes, thank you.  I will stand down.

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