Director of Public Prosecutions v Alves-Ferreira
[2018] VCC 1161
•27 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00520
| DIRECTOR OF PUBLIC PROSECUTIONS | |||
| v | |||
| CARLOS ALVES-FERREIRA | |||
JUDGE: | HIS HONOUR JUDGE GAMBLE | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 28 June and 10 July 2018 | ||
DATE OF SENTENCE: | 27 July 2018 | ||
CASE MAY BE CITED AS: | DPP v Alves-Ferreira | ||
MEDIUM NEUTRAL CITATION: | [2019] VCC 1161 | ||
REASONS FOR SENTENCE
---
Catchwords: CRIMINAL LAW: Sentence – Guilty Plea – Aggravated burglary, criminal damage and unlawful assault – Offences committed at home of offender’s sister – Criminal damage occurred on 7 October 2017 and the remaining offences on 6 November 2017 – Break down in relationship with sister who was the principal victim - Offender had earlier moved out of sister’s home and was attempting to retrieve personal property and a pet – First incident involved breaking bathroom window during daylight hours while second incident involved forced entry to home in very early hours of the morning while armed with a meat cleaver followed by a pushing of the female victim – Offender drug affected at time – Very limited criminal history involving driving offences and a minor instance of drug possession – No previous history relating to violence, weapons or damage to property – Offender aged 37 at time of offending and 38 when sentenced – Remorseful – Prospects of rehabilitation assessed as ‘relatively good’.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658.
Sentence: Total effective sentence of 3 years 6 months and 7 days with a non-parole period of 2 years for aggravated burglary and unlawful assault; Pre-sentence detention of 214 days declared; Section 6AAA indication of 5 years with non-parole period of 3 years; Convicted and fined $750 for criminal damage.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Foot (Plea) Ms R Barrett (Further Plea and Sentence) | Office of Public Prosecutions |
| For the Accused | Ms E Murphy | Dr Martine Marich & Associates |
HIS HONOUR:
Introduction
1 Carlos Alves-Ferreira, you have pleaded guilty to an indictment containing one charge of aggravated burglary and one charge of criminal damage. The maximum penalty for those offences are 25 years and 10 years’ imprisonment, respectively.
2 You have also consented to this Court having jurisdiction to hear a related summary charge of unlawful assault. You have pleaded guilty to that charge which carries a maximum penalty of 3 months’ imprisonment.
3 The circumstances in which you came to commit those offences are set out in the typed prosecution opening which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. I have had regard to that opening, as amended, when considering the appropriate sentence in this case.[1]
[1] The opening was dated 30 May 2018 and tendered as exhibit A on the plea.
4 The offending occurred at the home of your sister on two dates in late 2017. The offence of criminal damage was committed on 7 October, while the other two offences were committed on 6 November. You were then 37 years of age and are now 38, having been born on 29 May 1980.
Circumstances of the offending
5 By way of background, in approximately mid-2016, you commenced a relationship with a woman named Sarah. The two of you commenced to live together in June of the following year. Within weeks, however, the relationship broke down and you had to move out.
6 Your younger sister Helena then allowed you to live in the home that she shared with her two daughters who were aged 16 and 4, respectively. Your sister is the principal victim in this matter.
7 You commenced living in her home on 7 August 2017. However, the relationship between you and your sister broke down and that resulted in you moving out about six weeks later, on 20 September.
8 An arrangement was made for you to attend that residence at 10am on
7 October so you could collect your belongings. You arrived there five hours late.
9 When you did attend at approximately 3.00pm, you discovered that the door to the garage in which your things were being stored was locked. You became angry and shouted at your sister who was inside the house with her daughters. She became fearful for her daughters and from within the bathroom, yelled at you to leave. Instead of doing as she requested, you continued to yell at her and then punched the bathroom window, causing it to break. It is that act on your part which provides the factual basis for the offence of criminal damage alleged in Charge 2. The window was valued at approximately $350.
10 In response, your sister called the police. By the time they arrived, you had already left the address.
11 Almost a month later, on 6 November 2017, you re-attended at your sister’s house at approximately 2.45 am. At that time, she was in the kitchen with a male friend while her two daughters were asleep in their bedrooms.
12 Almost immediately, you began to bang on the front door. When your sister asked who was outside, you identified yourself and then demanded that she return your dog. She immediately went and retrieved the animal from elsewhere in the house and then let it out the front door. However, by that time, you had walked around to the rear of the house. As you did so, your sister heard you scratching an object along the bricks adjacent to the rear laundry door.
13 You then kicked the laundry door open, breaking the lock in the process. At that point, you entered the house while armed with a meat cleaver. Following plea negotiations, this matter resolved on the basis that the charge of aggravated burglary would be alleged to involve entry with an intention to assault in the more narrow sense that the word ‘assault’ is used in the criminal law. So, you fall to be sentenced on the agreed factual basis that you intended to place your sister in fear of being physically assaulted rather than on the basis that you intended to physically assault her. It is also agreed that you sought to place the victim in that frame of mind so as to effect the return of your dog. I will sentence you on the factual basis agreed between the parties. In essence, that means that you will be sentenced for the aggravated burglary offence alleged in Charge 1, on the basis that you entered your sister’s home as a trespasser, while armed with a meat cleaver, and while having the intention of placing her in fear of an imminent physical assault.
14 As a result of the way that you were behaving, your sister and the older of her daughters called 000.
15 On entering, you behaved in an aggressive and threatening manner. You repeatedly yelled ‘give me my fucking dog’. You also advanced on your sister and pushed her into a chest of drawers in the bedroom. That caused her to feel pain in her back and a blister on her heel to rupture. The physical assault just described forms the factual basis for the related summary charge of unlawful assault.
16 It was only then that you decided to leave the house. When doing so, you took your dog with you but left the meat cleaver behind.
17 Your sister sought medical assistance from a doctor on 8 November 2017. In terms of her back, the doctor noted significant tenderness, deep bruising and restricted flexibility. Also noted was a 1 x 2cm full thickness trauma ulcer to her left Achilles heel. To the doctor’s observation, the victim appeared ‘shaken’ and ‘psychologically agitated’. The only medical treatment provided was the application of a dressing and cream to the area of the ulcer.
18 As the result of your offending, you are no longer able to have any contact with your sister or nieces. In fact, the police took steps to ensure that an intervention order was obtained and that order is still current.
Arrest and Interview
19 You were arrested by the police at the home of an aunt on the morning of
24 November 2017.
20 When later interviewed, you gave a ‘no comment interview’ as was your legal right.
Pre-sentence detention
21 After being interviewed, you were then charged and remanded in custody where you have remained ever since.
22 However, not all of that time has been spent solely on remand for this matter.
23 On 8 March this year, you were sentenced to an aggregate term of one month’s imprisonment for a number of offences of driving whilst suspended and fined for an offence of driving in excess of the prescribed concentration of alcohol. As no period of pre-sentence detention was declared, the aggregate sentence expired on 7 April 2018. Obviously, the period spent serving that sentence cannot be doubly counted by inclusion in the pre-sentence detention declaration for this matter. In those circumstances, there is an additional need to apply the totality principle beyond that already enlivened by the fact that the current offences were committed in a short timeframe and, in the case of two, in the course of a single incident.
24 In relation to the first point, I note that the period that could be declared under s.18(1) of the Sentencing Act 1991 as at but not including the plea date of
28 June 2018, was 185 days.
25 Now, the total declarable period is 214 days, not including today’s date.
Timing of Plea
26 As I have noted, you were charged and remanded in custody for this matter on 24 November 2017.
27 Discussions aimed at resolving the matter commenced before the second committal mention hearing and resulted in a resolution by the time that hearing took place on 8 March 2018. On that date, you entered pleas of guilty in relation to this matter and, in addition, to the unrelated driving charges for which you were then sentenced to one months’ imprisonment.
28 On any view, your plea of guilty in relation to the current matter was entered at the earliest reasonable opportunity. I accept that the fact and timing of that plea provides some evidence of remorse on your part. Other evidence confirms that to be the case.
29 By pleading guilty as you have, at the stage that you have, you are entitled to a significant discount in your sentence. Not only has that plea resulted in a saving of time and money to the community by avoiding a contested committal hearing and trial, it has also spared the victims the ordeal of having to give evidence and thereby relive their most unfortunate experience.
30 The magnitude of the discount given for your plea will be made clear later in these sentencing reasons.
No victim impact statements
31 Although there are no victim impact statements, I am nonetheless satisfied that your sister and at least her eldest daughter would have been placed in fear as a result of your offending, and that your sister will likely take some considerable time to recover from the terrifying incident that you subjected her to on the second occasion. Whether she will fully recover in time remains to be seen.
Personal circumstances
32 I will now briefly outline your personal circumstances, Mr Alves-Ferreira.
33 You are a 38 year old man of Portugese heritage. You were born in
New Zealand but travelled to Australia with your family when you were still a very young child. You have resided in this country ever since.
34 You are the oldest of the two children in your family; your only sibling being the principal victim in this matter. Your parents went through an acrimonious separation when you were seven years old. Thereafter, you moved between their homes. Your mother used drugs and abused alcohol and led a somewhat unstable and transient life. When she was imprisoned for kidnapping and associated offending, your father was granted full custody of the children and moved the family to live with your grandparents. You came to view your grandmother as ‘like a mother’ to you. You visited your mother in custody during her four-year sentence. By the time she was released you were about 13 years of age. You had very little contact with her after that time and certainly no meaningful relationship.[2] In that context, you consider her to have abandoned you and you have no ongoing contact with her nor, for that matter, with your sister and nieces.
[2] By contrast, Mr Alves-Ferreira’s sister spent some periods residing with their mother, as to which see [1] of exhibit 1.
35 You do, however, currently have positive and ongoing contact with your father and some of your half-siblings from his later relationship.
36 But, there have been issues in the past regarding the relationship with your father. Although you got on well with him when growing up, you believe you were ‘kicked out of home’ at age 18 when he remarried. That has contributed to the feelings of rejection and abandonment you experience.
37 Although you consider yourself to have been a reasonably good student, you left school part-way through Year 11 as you were more interested in finding employment.
38 After leaving school, you completed three years of a four year bricklaying apprenticeship and then worked for two years with your father at various transport companies driving trucks and forklifts. You took up concreting in about 2008 and remained working in that field until the end of 2015. You consider yourself to have been unfairly dismissed from your last position and have struggled to obtain work since. You have been on a Newstart Allowance since January 2017.
39 Thus, except for the past couple of years, you have a good work history.
40 You have a history of alcohol abuse and drug use which has largely been unaddressed, though controlled to some extent by steady employment until more recent years.
41 You were assessed by the clinical psychologist, Carla Lechner, on 22 May 2018. I have had regard to the contents of her report dated 15 June 2018, a copy of which was tendered as Exhibit 5 on the plea.
42 In her opinion, you presented as someone of average intelligence and with symptoms of alcohol and stimulant use disorder in early remission in a controlled environment. You smoked cannabis from age 16 to 21. You began using speed and then ice in 2006/07 until it became a daily habit in the last two to three years. You have also used many other types of drugs as well as the medication Xanax which you first obtained from your mother.
43 As Ms Lechner also noted, you have a reported history of depression for which you had taken the anti-depressant medication Pristiq intermittently. In custody, you have been recommenced on another type of anti-depressant medication. You are currently awaiting medical review for a thyroid problem which is causing you some angst.
44 In relation to an earlier period in your life, Ms Lechner noted the following. In 2015, your grandmother, with whom you were close, died. In the same year, you lost your job and experienced considerable difficulty finding alternative employment. In that context, your mood state appears to have deteriorated. You did not respond well to those stressors in your life; you used increasing quantities of drugs and drank even more heavily and that only aggravated your symptoms of depression and anxiety.
45 Prior to your current offending, and at the suggestion of your sister, you sought some assistance for your mental health issues but not for your problems with drugs and alcohol. You consulted your GP who prepared a Mental Health Assessment and Plan on 25 May 2017[3] and referred you to the psychologist Teresa Perri. As her letter makes clear, you saw her on one occasion in mid-June 2017, at which time you presented with significant symptoms of depression, anxiety and stress.[4] You did not return for any continued therapy.
[3] See exhibit 8.
[4] The letter was dated 23 June 2018 and tendered as exhibit 4 on the plea.
46 Ms Lechner also outlined the circumstances in the more immediate lead up to your current offending and provided the context in which such offences were committed.
47 In August 2017, you broke up with your then girlfriend and that caused you to spiral further into depression and drug use. You had to move into your sister’s home. After you and she had a falling out over money, you then had to move out. Your life and accommodation became even more unstable. Initially, you had to leave your personal property behind, as well as your dog, which you were in no position to care for at that time. Your sister was tasked with the role of looking after the dog in your absence. You had still not taken possession of your personal property or dog from those premises before this offending occurred. In fact, you seem to have harboured some resentment towards your sister because you believed that she was preventing or at least hampering your efforts to do so. Your offending on the first occasion occurred in the context of you being unable to access your personal property in the garage while that on the second occasion appears to have been carried out in order to ensure that you obtained your dog which your sister had been looking after until you got back on your feet.
48 The explanation for your offending was dealt with by both Ms Lechner and your counsel, Ms Murphy.
49 In the history that you provided to Ms Lechner, you explained your offending by reference to your desire to obtain your personal belongings and pet dog and on the effects of the cocktail of drugs you were using at the relevant time, specifically ‘Ice’, GHB and Xanax. In Ms Lechner’s view, that drug use would have adversely impacted on your decision making and capacity for impulse inhibition.
50 Your counsel indicated that both episodes of offending arose in the context of ‘an ill-conceived attempt to retrieve your belongings’. She urged the Court to view that ‘erratic and frightening offending’ in the context of your deteriorating personal circumstances[5] and your methamphetamine use[6] rather than as being emblematic of a violent disposition.
[5] Namely, being unemployed, without stable accommodation and experiencing a deterioration in mental health: see [4iii] of exhibit 1.
[6] Counsel also indicated that her client had been consuming GBH and Xanax as well in the hours immediately prior to the commission of the aggravated burglary: see [2] of exhibit 1.
51 Ms Lechner noted your expressions of shame and regret for your offending, particularly regarding your young niece who you accept was a witness to the aggravated burglary incident and no doubt frightened by that experience.
52 In the context of making an assessment of your prognosis, Ms Lechner noted that you reported being keen to start afresh and engage with appropriate supports. In relation to that prognosis and any recommendations for treatment, Ms Lechner provided the following opinions. Your prognosis is positive providing you engage with treatment services. She is of the view that you would benefit from supervision and support in the community, including targeted therapy focused on adaptive mood management strategies and the abandonment issues you experience in the context of intimate relationships. Drug and alcohol counselling are strongly recommended so as to minimise the risk of relapse.
53 In forming the view that she did about your prospects, Ms Lechner had regard to the support you indicated you were receiving from your father, your employment opportunities, your willingness to engage with services, the stabilisation of your mood with new medication and your strong desire to stay out of prison in the future. In relation to the issue of medication, she notes that now that you have undergone a forced period of detoxification whilst in custody, your anti-depressant medication is likely to be more efficacious.
54 You have endeavoured to use your time spent on remand for this matter as productively as possible. You have reflected on your situation. As noted by Ms Lechner, you are certainly capable of reflecting on the impact that your behaviour is likely to have on both yourself and others. You have worked as a billet and undertaken a number of educational and workplace courses aimed at increasing your employment prospects. You have also completed a number of well-being and mood management type courses.
55 On your eventual release from custody, you will be able to live with your godmother and aunt or at your father’s home and you can work as a concreter with your cousin’s fiancé.[7]
Matters in mitigation
[7] In regards to the job offer, see the letter from Savas Papachatzakis dated 26 June 2018 (exhibit 7).
56 Your counsel, Ms Murphy, was able to rely on a number of matters in mitigation on your behalf, some of which I have already referred to.
57 As a result of your very early plea, you have saved the community from the time and cost of a contested committal and trial and, more importantly, spared your sister and niece from the ordeal of having to give evidence.
58 In all of the circumstances, including your decision to take that course at the stage that you did, and the sentiments that you have expressed to
Ms Lechner, I am prepared to accept that you are remorseful for your criminal conduct.
59 Accordingly, you are entitled to a significant discount in your sentence.
60 You experienced a difficult and somewhat disruptive childhood following your parent’s separation and your mother’s incarceration.
61 Notwithstanding that, you went on to accumulate a good and reliable work history.
62 Despite a lengthy history of alcohol abuse and drug use, which has been largely undiagnosed and untreated, you have what I regard to be a limited and largely inconsequential criminal history for current sentencing purposes.
63 I accept that you have been chastened by your experience of the criminal justice system on this occasion, and that the time you have had to spend on remand for these charges has already effected a degree of personal deterrence in your case. I am prepared to accept that you have found your time in custody difficult for a number of reasons and that you are anxious to avoid returning there in the future.
64 It is to your credit that you have endeavoured to use that time on remand productively. To that end, you have abstained from drug use, worked and undertaken a number of courses.
65 In light of your age, personal circumstances and very limited criminal record, you are someone for whom rehabilitation is a realistic and worthy objective. All the more so when it would seem that your current offending appears out of character and explained, to some extent, by your use of drugs. That impression receives support from the observations of those who prepared the character references that were tendered at the plea hearing.[8] In their opinion, you have taken responsibility for what you have done and are determined to continue to make positive changes to your life once released. You have family support and the promise of stable accommodation and employment on your release from custody.
Gravity of the offending
[8] See exhibit 6.
66 Apart from matters personal to you, Mr Alves-Ferreira, I must also have regard to a number of other sentencing considerations, one of which is the gravity of the offences for which you must now be sentenced.
67 As indicated by the relevant maximum penalty, criminal damage is far from a trivial or minor type of offence. The offence that you committed was neither a very serious or minor example of its type. Whilst the value of the damage caused was not high, there are a number of other relevant considerations to take into account. Yours was a gross over-reaction to the situation that presented itself. Your sister was entitled to set a time for the collection of your belongings and to lock the garage when you failed to attend at the appointed hour. She was also fully within her rights to tell you to leave once you began yelling at her. Rather than abide by her wishes, you escalated the situation quite dramatically by smashing the window of the very room in which you knew she was present. Your conduct must have, as your counsel has conceded, appeared very erratic and frightening for your sister and her daughters. In those circumstances, I regard this instance to be a relatively serious example of its type.
68 That said, I remain cognisant of the fact that Mr Alves-Ferreira has no history for this type of conduct and his behaviour appears to have been out of character.
69 Aggravated burglary is, by its very nature, considered by Parliament, the community and the Courts, to be an inherently serious offence. That fact is amply demonstrated by the very high maximum penalty that Parliament has fixed, namely 25 years’ imprisonment.
70 The approach to be taken when assessing the objective gravity of any particular offence, and the relevant considerations when undertaking such a task, were helpfully outlined by the Court of Appeal in DPP v Meyers.[9] I have had regard to those matters in so far as they are relevant to this case.
[9] (2014) 44 VR 486.
71 This particular offence has some serious aspects to it although in other respects it is distinguishable from more serious examples of confrontational aggravated burglaries, such as that concerned in Hogarth v The Queen[10] In particular, this offence did not involve multiple offenders or entry with an intent to physically assault any occupant.
[10] (2012) 37 VR 658.
72 But, it was pre-mediated and involved a degree of planning. As with many offences of this type, the offender acted out of anger and while drug affected. It was committed in the dead of night at a residential home in which the female victim and her two daughters were entitled to feel safe. At the time of entering, Mr Alves-Ferreira well knew that there were likely to be at least three occupants inside; his sister and her two daughters, one of whom was very young. He had taken no steps through alternative channels to effect the return of his property or dog. Even on the morning in question, he gave his sister almost no real chance to comply with his demand for the return of his dog. Instead, he chose to effect a violent forced entry while armed with a fearsome looking weapon.
73 His intent on entry was to assault rather than to steal or cause criminal damage. Although he did not intend to physically assault his sister, he did intend to cause her to fear that he was about to physically assault her. Given all the relevant circumstances, including the nature of the weapon possessed by him at that time and the fact that he must have known that he had scared her by his actions when attending at her house a month earlier, I am in no doubt that the level of fear that he intended to place her in on this occasion was very high indeed. This offending involved a clear and egregious breach of the trust that his sister and nieces placed in him as their brother and uncle, respectively. In all of those circumstances, I consider this to be a serious example of the offence of aggravated burglary. In my view, Mr Alves-Ferreira must bear a substantial level of moral culpability for what he did.
74 As a prelude to considering the remaining offence of unlawful assault, I note that the offence of aggravated burglary was complete once Mr Alves-Ferreira entered the house. Viewed in that light, it can be readily appreciated that the subsequent assault is a distinct and separate act of criminality on his part and warrants some additional punishment.
75 Contrary to the submission made by defence counsel, I do not consider this instance of unlawful assault to be of ‘a low order’ of seriousness. In my view, this is a relatively serious example of its type, for the following reasons. The attack on the unfortunate victim was completely unprovoked and nasty. It occurred in her home. Her teenage daughter was present and witnessed the attack. It caused pain and injury to the victim, although I make clear that in saying that, I am not sentencing Mr Alves-Ferreira for a more serious offence than that of unlawful assault. I do not sentence him on the basis that he intended to cause injury or was reckless in that regard. But, on any view, it was a callous attack on a defenceless woman who had previously opened her home to him in a time of need. And, in acting as he did, he seriously breached the trust she had placed in him as her brother and only sibling.
76 I have no doubt that his actions during this second incident would have placed his sister in extreme fear and that she will continue to suffer from the adverse emotional consequences of what he did for some time to come. At least in respect of the older of her daughters, I am also satisfied that she would have been traumatised by what he did and the effect that it had on her mother. I say nothing about the younger daughter as it is unclear whether she witnessed the incident or its immediate aftermath.
77 Before turning to consider the relevant sentencing principles, I should say something briefly about the context and reasons for this offending that have been referred to by Ms Lechner and Ms Murphy, each of whom no doubt obtained a history from Mr Alves-Ferreira himself. To the extent that he was anxious to retrieve his personal property and pet from the property in question and noting the part that drug use played in disinhibiting him and clouding his judgement, I accept that provides a context and the reasons for him offending as he did at a low ebb in his life. However, it should also be made crystal clear that it provides no justification or excuse for his criminal conduct.
Relevant Sentencing Principles
78 In this case, general deterrence and denunciation are obviously very important sentencing considerations. This was serious offending, of the type which is prevalent in the community and which causes considerable public concern. By the sentence that it imposes today, this Court must seek to dissuade other people from acting aggressively and violently while motivated by feelings of anger. And, it must condemn such criminal conduct in strong terms.
79 Given the nature and seriousness of this offending, and the as yet untreated substance and mental health problems, specific deterrence is also relevant. It does not, however, need to be given quite the same emphasis as some other sentencing considerations. This offending appears to have been aberrant conduct on Mr Alves-Ferreira’s part and I have no doubt that the prosecutorial process and being held on remand have already achieved a measure of personal deterrence in his case.
80 For similar reasons, protection of the community, while relevant, is not a weighty consideration.
81 Mr Alves-Ferreira must be justly punished for the offences that he committed. Notwithstanding his age and limited criminal record, the seriousness of that offending demands that he be sentenced to an immediate term of imprisonment. Such a disposition is also necessary if this Court is to achieve the necessary degree of general deterrence and adequately denounce the criminal conduct on behalf of the community.
82 Totality considerations must also be given effect to. Whilst each of the offences are discrete in nature and involve separate criminality, the fact remains that two of the offences were committed during a single episode of relatively short duration and all offences were committed within the space of a month.
83 The principle of parsimony must also be considered and applied. Section 5(4C) of the Sentencing Act 1991 gives statutory effect to that principle by requiring the court to consider whether the purposes of sentencing may be met by an appropriately conditioned community correction order before imposing a sentence that involves the confinement of an offender.[11] In this case, the defence conceded that some period of immediate imprisonment is unavoidable given the gravity of the offending.
[11] In this regard, see the guideline judgement in Boulton v The Queen (2014) 46 VR 308, 311, 330-3, 335, and 337-8.
84 However, even where there is a need to impose a custodial penalty, the parsimony principle requires that consideration be given to whether a combination sentence is open as that would constitute a less punitive option than a wholly custodial sentence comprising a head sentence and non-parole period.
85 This Court must also have regard to the offender’s age and prospects for rehabilitation. Mr Alves-Ferreira is, as I have already noted, a man of relatively mature years with a limited criminal record and nothing involving violence or weapons. He has faced some adversity in his life to date and is in real need of professional counselling and treatment for his alcohol, drug and mental health issues. He has some people willing to support him and a proven capacity to obtain and maintain work. Any attempt to gauge his prospects of rehabilitation must be approached with a degree of caution, however, as much will depend on him undertaking the necessary treatment and counselling. In the end, doing the best I can with the information provided, I have concluded that those prospects are relatively good.
86 I must and do have regard to current sentencing practices in relation to the offences for which Mr Alves-Ferreira now falls to be sentenced.
87 The most recent sentencing snapshot for the offence of aggravated burglary was published in June 2018 and summarises sentencing trends in the higher courts in Victoria during the period 2012-13 to 2016-17.[12] Over that five year period, a total of 499 offenders were sentenced for a principal offence of that type and of those, 409 or 86% were given an immediate custodial sentence. Imprisonment terms ranged from 2 months and 6 days to 8 years, while the median length of imprisonment was 2 years and 9 months.
[12] Sentencing Snapshot No. 211.
88 However, such sentencing statistics are only ever of limited use because they do not reveal various matters of importance, such as whether an offender pleaded guilty or not guilty, what if any aggravating and mitigating factors existed, and the personal circumstances of the offender, including the nature and extent of any relevant criminal record.
89 I have also noted the case summaries for the offence of aggravated burglary published by the Judicial College of Victoria, which covers the period from 2013 to the present. While the information included in those summaries goes beyond mere statistical data, the use to which such information can be put is still somewhat limited. No two cases are ever truly alike or on all fours. Sentences imposed in other cases are not to be blindly followed unless distinguished. In most if not all cases, there is no one correct sentence, but rather a range of sentencing options that are legitimately open. Where in that range the sentencing judge in a given case arrives at is a matter of discretion and properly so.
90 Despite aggravated burglary being an inherently serious offence, there is a relatively wide range of circumstances in which any such offence can be committed.
91 It is perhaps trite to observe that there will be some cases in which a community correction order may be open to a sentencing judge whether in stand-alone form or by way of a combination sentence. In more serious cases, such dispositions will simply not be open because of the need to emphasise certain sentencing principles and in order to provide an adequate measure of punishment on the offender. As the Court of Appeal have said repeatedly, whilst a community correction order can be punitive, it is not as punitive as a custodial sentence.
92 What is called for in each case, is individualised justice through a process of instinctive synthesis. In the end, I must sentence Mr Alves-Ferreira based on the particular circumstances of the case at hand not from a starting point that a very substantial sentence is called for simply because this case involves a confrontational aggravated burglary. There must be a focus on the particular circumstances raised by this case, both as to the offending and the offender.
Sentencing Submissions
93 In her submissions on sentence, defence counsel urged this Court to impose a combination sentence; that is a period of immediate imprisonment equivalent to or not much exceeding the period spent on remand, followed by release on a properly conditioned community correction order. She pointed to a number of conditions that could assist and encourage Mr Alves-Ferreira’s rehabilitation, including supervision, drug assessment and treatment, mental health assessment and treatment, and undertaking offender behaviour programs. Ms Murphy submitted that such a course was properly open to this Court, particularly in light of the period that Mr Alves-Ferreira has already spent in custody on remand for these charges and the ability to place him on a lengthy and onerous community correction order, if necessary.
94 In urging the Court to impose a combination sentence, Ms Murphy sought to make a number of additional points about the offending on the second occasion beyond the context in which it occurred. The planning involved was not of a high order. It was not committed in company. There was no intent to physically assault on initial entry. The episode was of relatively short duration. The assault was fairly spontaneous given the accepted position regarding the accused man’s intent when entering only moments earlier.
95 In reply, Ms Foot, counsel who appeared on behalf of the Director at the plea hearing, emphasised the seriousness of this offending and submitted that it called for a term of imprisonment to be imposed by way of a head sentence and non-parole period rather than a combination sentence. In light of the provisions of s.44(1) of the Sentencing Act 1991, that submission necessarily involved, at least implicitly, the argument that a combination sentence which involved a period of up to 580 days’ imprisonment together with a lengthy and onerous community correction order was outside of the available range in the particular circumstances of this case.[13]
[13] That is because the effect of section 44 (1) of the Sentencing Act 1991 is to place a ceiling on the length of the term of imprisonment component since a combination sentence may only be imposed if the sum of all of the terms of imprisonment to be served (after deduction of any period of pre-sentence detention) is one year or less. Thus, the maximum period of imprisonment that could be imposed in combination with a community correction order here is 580 days (as 580 days minus the PSD of 215 days equals 365 days or 12 months).
96 Following the plea hearing I arranged for an assessment to be undertaken as to whether community corrections considered Mr Alves-Ferreira to be suitable for a community correction order in the event that this Court were prepared to consider placing him on such an order by way of a combination sentence. At the time of doing so, I made clear to Mr Alves-Ferreira through his counsel, that my ordering of such an assessment should not be interpreted as an indication or guarantee that I would be imposing a combination sentence.
97 The resultant report dated 2 July 2018, indicates that he is suitable and makes recommendations as to which additional conditions to the mandatory core conditions could be attached to such an order if made. The author considered that Mr Alves-Ferreira showed some insight into his offending behaviour and was motivated to work and get his life back on track when he is released. The author assessed him as being a medium risk of re-offending.
Analysis
98 I have given the question of whether a combination sentence is open in this case anxious consideration.
99 In the end, after carefully considering all of the relevant sentencing considerations, I have come to the view that it is not. In my view, the prosecution submission to the effect that the nature and gravity of this offending demanded a wholly custodial sentence in the form of a head sentence and non-parole period is correct. That is what the justice of this case requires if this Court is to give adequate recognition and weight to the relevant sentencing principles, in particular, general deterrence, denunciation and just punishment.
100 But, I am acutely aware of the fact that this is the first time that Mr Alves-Ferreira will have to serve an immediate term of imprisonment. And, I have kept firmly in mind what matters in mitigation there are here, including his prospects for rehabilitation, particularly when considering the non-parole period that should be fixed. In the end, the sentences are as low as I consider the law allows. To go any lower would, in my view, risk undermining a number of important sentencing principles and would not justly punish
Mr Alves-Ferreira for his criminal conduct.
Sentence for Aggravated Burglary and Unlawful Assault
101 Mr Alves-Ferreira, please stand. You will be sentenced as follows.
102 For Charge 1, aggravated burglary, you are convicted and sentenced to a term of 3 years and 6 months’ imprisonment.
103 For summary Charge 3, unlawful assault, you are convicted and sentenced to a term of 1 months’ imprisonment.
104 The sentence of 3 years and 6 months imposed for Charge 1 will be the base sentence.
105 I direct that 7 days of the 1 month sentence imposed for summary Charge 3, unlawful assault, is to be served cumulatively with that base sentence.
106 The total effective sentence is therefore 3 years 6 months and 7 days’ imprisonment.
107 In respect of that head sentence, I fix a non-parole period of 2 years.
108 I trust that, in the event that Mr Alves-Ferreira is considered suitable for release on parole, the Parole Board will consider these sentencing reasons and the recommendations made by Ms Lechner when determining what conditions to attach to any such parole order.
Sentence for Criminal Damage
109 In all the circumstances, I consider it appropriate to deal with the criminal damage charge by way of a monetary penalty.
110 This was the first of the offences committed. Bearing in mind what was done and the fact that until that point Mr Alves Ferreira had not shown himself to have been inclined to damage property or act aggressively towards his sister, or anyone else for that matter, the offending does not call for even a community based order, let alone any term of imprisonment. Accordingly, I propose to proceed by way of a conviction and fine.
111 For Charge 2, criminal damage, Mr Alves-Ferreira is convicted and fined the sum of $750.
Section 6AAA indication
112
Pursuant to s.6AAA of the Sentencing Act 1991, this Court states that had
Mr Alves-Ferreira pleaded not guilty to the two offences for which he has been sentenced to imprisonment today, and had he been convicted of those same offences at trial, he would have been sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years.
Pre-sentence detention
113 Is the pre-sentence period of 214 days, not including today’s date, an agreed figure, counsel?
114 MS BARRETT: Yes, Your Honour.
115 MS MURPHY: It is, Your Honour.
116 HIS HONOUR: I make a pre-sentence sentence declaration to the effect that Mr Alves-Ferreira has already served a period of 214 pre-sentence detention for the offences for which I have sentenced him to imprisonment. That figure not including today's date. I further order that that declaration and its details be entered in the records of the Court.
Forensic Sample Order
117 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Alves-Ferreira pursuant to s.464Z(2) of the Crimes Act 1958. I have made that decision having regard to the seriousness of the circumstances of the offending, the fact that the order was not opposed and the fact that the granting of the order is in the public interest.
118 Accordingly, I order that Mr Alves-Ferreira undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Act until a sufficient sample is obtained for placement on the database.
119 Mr Alves-Ferreira, I am required to tell you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
120 OFFENDER: Yes.
Disposal Order
121 HIS HONOUR: I am also prepared to grant the prosecution’s application for a disposal order, in the terms sought, which I note was not opposed by the defence. Accordingly, pursuant to s.78(1) of the Confiscation Act 1997, I order that the meat cleaver used in this offending be forfeited to the State in accordance with the terms of the order I have signed today.
Other Matters
122 Counsel, are there any matters that either of you wish to raise in respect of either the sentence or reasons for sentence at this stage?
123 MS BARRETT: No, your Honour.
124 MS MURPHY: No, your Honour.
125 HIS HONOUR: Very well. I will now stand down until the next matter is ready to proceed.
- - -
0
3
0