Director of Public Prosecutions v Amato
[2024] VCC 1439
•13 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02371
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW AMATO |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2024 | |
DATE OF SENTENCE: | 13 September 2024 | |
CASE MAY BE CITED AS: | DPP v Amato | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1439 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated Burglary; Common Law Assault; Plea of Guilty
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 249 CLR 571; DPP v Amato [2013] VCC 307; Allouch v The Queen [2018] VSCA 244
Sentence: 5 months imprisonment & 18 month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Balmer & Associates |
HIS HONOUR:
Introduction
1Andrew Amato, you have pleaded guilty to an indictment containing one charge of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment, and one charge of common law assault, which carries a maximum penalty of five years' imprisonment.
2You have also admitted your criminal record.
The circumstances of offending
3The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 5 March 2024,[1] which was read out by Mr McHenry on behalf of the prosecution at your plea hearing before me on 25 June 2024. Through your counsel you accepted the facts contained in that document.
[1]Exhibit 1
4Your offending can be briefly summarised.
5At the time of your offending, you were aged 40 and lived in an apartment on Carlisle Street, St Kilda. In around July 2021, you commenced a relationship with Kayla Richards.[2] That relationship ended in December 2021 due to your possessive and controlling behaviour, which included you checking her mobile phone when she was asleep and reading her messages, checking her laptop to see what she had been up to and looking at her Instagram account. According to Ms Richards, during your relationship you were jealous of her friendships with males, including the victim named in Charge 2 on the indictment, Mr Mitchell. You apparently applied pressure to Ms Richards not to have contact with males, leading her to stop seeing them. Following the end of this relationship you went home to America for a few weeks before returning in January 2022. By February 2022 you and Ms Richards recommenced your relationship which ultimately ended in April 2022 for the same reasons.
[2]A pseudonym.
6Your offending in relation to both charges on the indictment relates to Mr Mitchell, and occurred at his home in South Yarra on 29 April 2022. At the time, Mr Mitchell was not personally known to you. You knew of him through his friendship with Ms Richards but had otherwise not met Mr Mitchell on any previous occasion and apparently did not know his address.
7
At around the start of April 2022, when you had resumed your relationship with
Ms Richards, she told you that she was out of cloud storage on her phone, and you said that you would assist her with this. According to Ms Richards you became quite obsessive about her Apple iCloud account and contacted Apple on her behalf, using her phone in her presence to try and resolve her storage issue. You asked her to merge her account with yours but she told you that she did not want to do this because she did not trust you.
8On Saturday 23 April 2022, you and Ms Richards attended a 30th birthday party at a venue in Chapel Street. At one point in the evening, as Ms Richards was on the dance floor and a male approached her while she was dancing, you became jealous and wanted to know why the male was speaking to her. Ultimately, you and this male ended up in a physical fight outside of the venue, which Ms Richards observed, unsurprisingly leading her to become scared. The two of you went home to your place where you argued about the male and you accused Ms Richards of messaging other men. You asked her about Mr Mitchell and whether she had been messaging him or had engaged in sex with him. You told Ms Richards that you had accessed her phone on a number of occasions and observed messages between her and Mr Mitchell and that you knew her phone password. As Ms Richards was too intoxicated to drive home, she stayed the night. The following morning you admitted to Ms Richards that you had been checking her messages while she had been sleeping.
9You contacted Ms Richards a few days later to apologise for your actions and telling her that you would get help. She informed you that she did not want to be in a relationship with you which apparently made you angry.
10A few days later on Friday 29 April 2022, the day of your offending, Ms Richards had arranged to meet up with Mr Mitchell at his address in South Yarra. He texted her his address as she could not remember it. Ms Richards arranged to meet Mr Mitchell, whom she had not seen for a number of months, at his house after work. Ms Richards drove to Mr Mitchell's house after he finished work, arriving at around 5 pm. Between 4.20 pm and 5.01 pm, you sent Ms Richards a number of messages essentially asking if she had plans for the night and asking if she wanted to grab dinner or a quick drink. Ms Richards did not respond to any of these messages.
11
Upon Ms Richards arriving at Mr Mitchell's address, she went inside and finished sending some work emails before grabbing some clothes to get changed. As she did this, and shortly after your last message to Ms Richards at 5.01 pm, she heard a noise outside and saw you walking past the window. Ms Richards at this point was in the lounge room. You were angry and stormed through the glass sliding door to the lounge room, saying 'What the fuck's going on here, what the fuck do you think you're doing with my girl'? Mr Mitchell was seated on the couch and you immediately assaulted him by pushing him and throwing punches which did not connect. A scuffle between you and Mr Mitchell ensued during which you put
Mr Mitchell in a headlock. He was able to push you away which caused the lounge room window to smash. At some point during this incident, Mr Mitchell received a cut to his finger. Your conduct in entering Mr Mitchell's property as a trespasser with an intention to assault, with you knowing or being reckless as to whether or not a person was then so present, forms the basis of the aggravated burglary charge. Your conduct in assaulting Mr Mitchell forms the basis of the offence of common law assault.
12Whilst Ms Richards tried to calm you down, you said, 'Did she tell you that she's my girlfriend, did she tell you that we're together, did she tell you that we love each other'? Ms Richards was trying to get you to leave, and eventually you did, walking with Ms Richards out the front of the property where you had parked your car. You continued to berate Ms Richards out the front of the property about her contact with Mr Mitchell, yelling at her to 'get fucked' as you got into your car and drove away.
13The cut to the right index finger of Mr Mitchell ultimately required two sutures under local anaesthetic.
14In the hour following your offending you sent Ms Richards numerous messages of an extremely derogatory nature, telling her that she was fucked, that she had been love bombing you, that she had been gaslighting you, that you could not believe that you fell for her manipulation, that she did a really good job of making you believe it was love, and referring to Mr Mitchell as, 'An old tinder fuck'.
15Later that evening Ms Richards was scrolling through her phone settings and noticed that her family sharing app was activated and that 'Drew' was listed as the organiser on the app. You were listed as 'Drew' in her phone contacts. The app also had permission to access Ms Richards' location. Upon learning of this, Ms Richards felt unsafe knowing that you had access to her phone and had been monitoring her movements.
16After Ms Richards reported the matter to police on 29 April 2022, you were ultimately arrested at your home on 4 May 2022, and you were taken to the Prahran Police Station where you provided a 'no comment' interview.
17Victim Impact Statements were completed by Mr Mitchell and Ms Richards. In his Victim Impact Statement,[3] Mr Mitchell referred to attending hospital for stitches to his finger, and that his visit to the hospital brought up difficult memories from a previous death in the family. He referred to the physical and social impacts of your offending upon him, and described feelings of dread, anger and frustration as court appearance dates neared.
[3]Exhibit 3
18Ms Richards attended at your plea hearing on 25 June 2024, and read out her detailed Victim Impact Statement.[4] In her statement, Ms Richards provided a compelling account of your offending and its extremely adverse impacts upon her. According to Ms Richards, there is not a day where she has not been negatively impacted physically, psychologically, socially and emotionally. When you broke into the property, Ms Richards was understandably scared for her life and was convinced that you would kill her. Even now, various events and occurrences trigger anxiety for her. She now feels essentially unsafe on her own and has withdrawn socially as a result of your offending. She has withdrawn from friends. She has found the idea of dating daunting. Significantly, she has experienced a fundamental breach of privacy as a result of your controlling behaviour towards her. Her considerable anxieties have affected her ability to work and feel safe. She has experienced night terrors.
[4]Exhibit 2
19Clearly, Ms Richards has found the protracted court process to be extremely arduous and found the process of giving evidence at your committal hearing to be a most difficult one. It is very clear to me both in terms of the content of Ms Richards' statement, and her demeanour when reading out her Victim Impact Statement, that your offending has affected her terribly. In those circumstances, she is to be commended for her resilience and courage in attending court to inform the court of the impacts of your offending behaviour upon her, in what were surely difficult circumstances.
20Victim Impact Statements are an important means through which victims of crimes can meaningfully participate in the sentencing process, by informing the court of the often significant and far reaching consequences of offending upon them. In formulating an appropriate sentence in your case, I have had regard to the Victim Impact Statements tendered in this matter.
Nature and gravity of your offending and your level of responsibility for it
21The gravity of your offending is of course reflected in the relevant maximum penalties. In your case, this offending essentially represents family violence offending. At the time, you had been in an intimate relationship with Ms Richards. I am satisfied to the requisite standard that during your relationship, particularly in the latter stages, you were possessive and controlling of her, particularly with regards to perceived contact with other males. Whilst the stalking charge initially brought against you was withdrawn, much of your conduct referable to your highly concerning behaviour towards Ms Richards remained in the prosecution opening, and therefore forms a factual context or background to the offending for which you have now pleaded guilty.
22Even in the earlier iteration of your relationship with Ms Richards, you had engaged in possessive and controlling behaviour, which included checking her mobile phone when she slept and reading her messages, checking her laptop to see what she had been up to and looking at her Instagram account. In the days leading up to your offending, you got involved in a physical altercation with another male who had approached Ms Richards at a venue. In the aftermath of that incident you accused Ms Richards of messaging other men, asked whether she had had sex with Mr Mitchell, and told her that you had accessed her phone on a number of occasions as you knew her password, and read her private messages.
23That evening, as she slept, you accessed her phone and checked her messages whilst she was sleeping. I am satisfied to the requisite standard therefore that in the lead up to your offending you had been monitoring Ms Richards' messages and her location. You did not know Mr Mitchell personally, and had not previously been to his property. I am satisfied therefore that the only means through which you were able to attend at Mr Mitchell's property on the day of your offending was through your monitoring of Ms Richards’ phone, a fact acknowledged by you in your assessment with Corrections Victoria.[5]
[5]Extended presentence assessment – outcome report dated 19 August 2024 at page 2
24I am satisfied therefore that your offending was essentially borne of your irrational paranoia and jealousy over a perceived relationship of sorts between Ms Richards and Mr Mitchell. By virtue of your pleas of guilty, when you entered Mr Mitchell's home, you intended to assault him, and indeed, did so. All of this of course occurred in the presence of Ms Richards. She was understandably terrified. This was, in my view, a confrontational aggravated burglary with a family violence context. Whilst your actions of entering the property as a trespasser and virtually immediately assaulting Mr Mitchell may well have been the result of spontaneous but fundamentally flawed decision making, your conduct leading up to this point was not spontaneous. In my view, you likely tracked Ms Richards through her phone and arrived at Mr Mitchell's property in an extremely heightened state, leading to your violent behaviour upon seeing Ms Richards at the property. Your behaviour was completely indefensible. The prosecution was right to describe the offending therefore as serious and representing a medium range example of this particular type of offending overall.
25In terms of your level of culpability or responsibility for your offending, your counsel did not submit that your moral culpability was in any way reduced by virtue of any mental impairment. I will shortly detail your personal history and circumstances. Having regard to your personal history, I am satisfied that you have experienced childhood deprivation and trauma which in a general sense means that your moral culpability would be less than that of an offender whose formative years have not been marred in that way.[6] However, given the nature and circumstances of your offending, your level of moral culpability must in my view be seen as significant. You are clearly a man of some aptitude and intelligence. This was not spontaneous offending. The context of your offending involves a sustained period of possessive, controlling and jealous behaviour, culminating in your egregious conduct in the presence of Ms Richards on 29 April 2022.
[6]General mitigatory allowance pursuant to the Bugmy principles
Personal circumstances
26Your relevant background and circumstances were set out in some detail in the psychological assessment report of Dr Mathew Barth dated 4 May 2023.[7] It is clear that you have a history of childhood instability, abuse, exposure to drug use, and neglect. You were born in Southern California and you are the second youngest of 13 children born to your parents. You have described a very unstable and abusive upbringing within your family. Your father was verbally and physically abusive to you and your other siblings on a regular basis. Your parents used drugs heavily and the family moved frequently. You absconded from your parents when you were 10 years old and Child Protective Services became involved. You were subsequently removed from the family home, made a Ward of the State and placed with foster parents in Huntington Beach. You have described your foster parents as your real parents. Subsequent to this occurrence you had minimal contact with your parents, feeling resentful of their treatment of you and your siblings. Your biological father died from a heart attack some years ago and you have not had any contact with your biological mother for an extended period.
[7]Exhibit 'E'
27Given the chaotic environment with regards to your biological family, your schooling was severely disrupted and unsurprisingly this significantly impacted your social development and created ongoing issues with regards to developing social connections.
28To your credit, you completed your education in Southern California and apparently performed very well academically notwithstanding your difficult upbringing. Consistent with your strong passion for the sport of snowboarding, you obtained employment for a company in Mammoth Lakes in California whilst competing in snowboarding at a high level. You were promoted through the company, moving from a store manager into the area of marketing and sales. Whilst in Mammoth Lakes you met your future wife, Erin, an Australian citizen, and ultimately you travelled with her to Australia when she returned. You obtained some casual work in hospitality before applying for a permanent residency visa. You subsequently completed a Bachelor of Business and Marketing at RMIT and have developed a successful career in this industry. You have been promoted to senior roles in several large scale companies ultimately working as a marketing manager for one such company. You have described a very strong work ethic and commitment to your career, which is of course to your credit.
29You married Erin in September 2019 but the marriage began to deteriorate during 2020 before you ultimately separated in December 2021. By this time, as I earlier indicated, you had commenced a relationship with Ms Richards after meeting on Tinder. You described to Dr Barth strong emotional feelings for Ms Richards, however, as I earlier described, that relationship temporarily ended in December 2021 in the context of your problematic behaviour towards her, together with your disclosure to Ms Richards of your marriage to Erin.
30I have already referred to the impact of your impoverished upbringing on your moral culpability for the current offending, and my finding that your experience of childhood deprivation and trauma reduces to a degree your moral culpability, in comparison with the culpability of an offender whose formative years have not been marred in that way.[8] According to psychologist, Dr Barth in his assessment report dated 4 May 2023, you present as a person with a fragile self-esteem and, perhaps due to the adverse impacts of your turbulent and abusive childhood, you have been particularly sensitive to any perceived indications of rejection, which has been a prominent trigger for your underlying insecurity.[9] According to Dr Barth at such times you have been prone to escalating to reckless and hostile reactions which can impact your behavioural control, which has contributed to some issues in respecting appropriate interpersonal boundaries.[10] Of course, none of this in any way excuses your abhorrent behaviour with regards to Ms Richards and Mr Mitchell, however, it does provide a degree of context for your underlying personality structure as a result of your personal history.
[8]Bugmy allowance
[9]Page 8
[10]Page 8
31There is another aspect of your personal history which bears upon your moral culpability for your offending, and in my view increases your level of culpability. As indicated in your criminal history, on 15 March 2013 you were convicted and sentenced to an 18 month Community Correction Order in relation to the offence of indecent assault. At your earlier sentence indication hearing before me,[11] I was provided with the sentencing remarks with regards to that prior matter. As indicated in those reasons, you were convicted after trial with regards to the offence of indecent assault, and you were sentenced on the basis that you had sexually touched the victim's vagina in circumstances where you were very intoxicated and not giving any thought to whether the victim was consenting or might not be consenting at the time.
[11]DPP v Amato [2013] VCC 307 at paragraph 27
32In my view, this prior conviction represents an occasion upon which you have a treated a woman poorly, by failing to respect her personal agency and boundaries. Whilst clearly in a different context, your current offending carries with it an aspect of treating a woman poorly, by completely failing to recognise her agency and boundaries. That you would commit such offending after the presumably deterrent impacts of enduring a stressful criminal trial and appreciating the gravity and potential consequences of serious criminal conduct, in my view does elevate to some degree your moral culpability for the current offending. Your prior conviction also impacts your prospects for rehabilitation, diluting them to some degree.
Post offence conduct
33Your offending occurred on 29 April 2022. You were arrested a few days later on 4 May 2022. You have been on bail since being charged, a period of two years and five months, and you have been subject to various bail conditions, including abiding by intervention orders with regards to Ms Richards and Mr Mitchell. I was not informed of any breaches of bail on your part.
34Consistent with your education and employment history, I am satisfied that you have continued to demonstrate your strong work ethic through your ongoing employment as a marketing manager for a motor group which owns a number of retail automotive dealerships. Having considered your background circumstances generally, together with the material tendered on your behalf during your plea hearings, I am satisfied that you are a man of considerable aptitude, and in many respects you have been a productive member of the community. You are clearly well regarded by the people in your life, as evidenced for example by the character reference from your long-time friend, Mr William Powell.
35In the intervening period between the offending and today, you have attended for psychological assessments with psychologist, Dr Mathew Barth, on 8 February 2023, 19 April 2023, and most recently on 12 August 2024, with Dr Barth's findings contained in his two reports dated 4 May 2023 and 21 August 2024.[12] In Dr Barth's first report, having regard to your personality structure and other aspects of your background, Dr Barth recommended ongoing psychological treatment which included anger management or conflict resolution training, together with personal counselling.
[12]Exhibit E and G
36
You commenced such counselling with Mr Andrew Boxer, psychologist, on
25 January 2024. According to Mr Boxer's most recent report dated 26 August 2024,[13] over the past nine months you have attended 21 appointments with Mr Boxer for treatment of childhood trauma and relationship issues. According to Mr Boxer you have engaged well with therapy, which has focused on emotional regulation, distress tolerance strategies, as well as cognitive restructuring and interpersonal skills. Together you have worked on strategies with regards to maintaining appropriate relationship boundaries, and you have been learning emotional regulation techniques, with the interventions overall aimed at helping you develop healthier and more respectful relationship patterns. According to Mr Boxer, you have engaged in therapy enthusiastically and regularly.
[13]Exhibit L
37
You were most recently seen by psychologist, Dr Barth, on 12 August 2024, and Dr Barth set out his most recent findings in his report dated 21 August 2024, having regard to both his assessment with you and a consultation with Mr Boxer on
21 August 2024. Dr Barth considered your progress in treatment with Mr Boxer. He also noted your self-report of commencing treatment with a Men's Behaviour Change Program. In that regard I have considered a report both from specialist family violence practitioner at Family Life dated 5 September 2024,[14] documenting your participation in a Men's Behaviour Change Program through that organization from 26 June 2024 to 4 September 2024, you having attended the program on six occasions following your initial assessment.
[14]Exhibit H
38According to Dr Barth, it was apparent that you had made encouraging progress in your treatment with Mr Boxer. You displayed an increased insight into your offending behaviour, discussed the emotional and interpersonal factors which underpinned your conduct which primarily related to your intense insecurity in the relationship with Ms Richards due to your negative experiences from your childhood, your fear of abandonment, your hypersensitivity to any perceived signs of rejection and your acknowledgement that you had a propensity to resort to controlling behaviour in a dysfunctional attempt to over compensate when problems arise in your relationships.
39You were also able to articulate the coping skills that you had developed through your treatment with Mr Boxer. Finally, and significantly in my view, you were able to describe a realistic empathy for the impact of your offending conduct on your two victims. According to Dr Barth you expressed remorse for the impact of your offending conduct on the two victims, and you expressed a desire to utilise treatment to avoid reoffending. According to Dr Barth you have made good use of the treatment provided to you. You are addressing a broad range of factors from your childhood which have underpinned your history of relationship difficulties which contributed to your offending behaviour. According to Dr Barth you have made as much progress as is reasonably possible in the treatment you have participated in thus far. This all bodes well for your long-term rehabilitative prospects.
40Also in the intervening period between your offending and the date of sentencing, you have engaged appropriately it seems in a serious intimate relationship. Elise Jansen has provided two letters to the Court, dated 18 June 2024 and 29 August 2024.[15] In addition, Ms Jansen gave evidence before me at your plea hearing on 25 June 2024. A supportive letter was also provided to the Court from Ms Jansen's mother Margaret, dated 19 June 2024.[16] You were in a relationship with Ms Jansen from May 2022 until mid-July 2024. It is clear from both the letters to the Court and the evidence from Ms Jansen herself, that this was a loving and mutually respectful relationship.
[15]Exhibit C & K
[16]Exhibit D
41Ms Jansen impressed me as a forthright individual who would not tolerate disrespectful behaviour by an intimate partner. In evidence Ms Jansen confirmed that you had always behaved appropriately with her in the relationship, that she was aware of your difficult history, and was highly supportive of your ongoing treatment efforts. As at the date of her evidence, Ms Jansen described your relationship essentially as a permanent one with plans to start a family together. Sadly it appears from Ms Jansen's most recent letter that the relationship has now ended at her behest largely it seems as a result of your delayed disclosure to her of your offending details.
42Nevertheless, Ms Jansen's letter dated 29 August 2024 indicates that, in stark contrast to your offending behaviour, you have behaved appropriately as a result of Ms Jansen ending the relationship, and that you remain in each other's lives as friends. This is a matter of some significance in my view, given the nature of your offending. In a sense it serves as an example of your positive progress in treatment with regards to the conduct of respectful relationships and appropriate treatment of others.
43In your most recent assessment with Dr Barth, you referred to currently utilising the techniques learned with Mr Boxer to navigate your emotional response to the separation with Ms Jansen, which has been very upsetting for you. The manner in which you appear to have dealt with your most recent relationship breakup speaks positively to your long-term rehabilitative prospects, in circumstances where you have now been embedded in targeted treatment for some nine months. Indeed, a positive assessment with regards to your prospects for rehabilitation is supported from the most recent report of Dr Barth.[17] Further to that issue, I note in the extended presentence report from Corrections with regards to suitability for a Community Correction Order, you were assessed as representing a low risk of general reoffending.[18]
[17]Paragraph 18
[18]Page 5 of the extended presentence report dated 19 August 2024
Sentencing factors
44In formulating an appropriate sentence in your case, I have had regard to your pleas of guilty, which warrant a mitigatory allowance with regard to penalty. Yours certainly cannot be considered an early plea of guilty given the procedural chronology. You exercised your right to take this matter to a contested committal hearing on 14 December 2022, where both of your victims were cross-examined, which necessarily involved them revisiting the traumatic events of 29 April 2022, a matter referred to in Ms Richards’ Victim Impact Statement.
45You were committed to the County Court, where the matter proceeded before me at a sentence indication hearing on 10 July 2023, when you were then facing an additional stalking charge. You exercised your rights not to accept the indication given by the Court, and indicated that the matter would be proceeding to trial which was listed to commence on 5 March 2024. However, resolution discussions appear to have occurred from 21 February 2024 when you offered to plead guilty to the two charges now on the indictment, this offer being accepted by the prosecution and you were arraigned on 5 March 2024 and entered pleas of guilty to the two charges now before me.
46Your pleas of guilty were therefore entered quite late in the proceedings, after your victims had been cross-examined at committal, although in circumstances where one of the charges was withdrawn by the prosecution. In any event, your pleas of guilty carry a significant utilitarian value. They reflect your acceptance of responsibility and your willingness to facilitate the course of justice. They have avoided the need for Ms Richards and Mr Mitchell to again relive the traumatic experience of the offending, a matter of some significance given the family violence context. A sentencing discount is therefore warranted.
47
I am satisfied that a further sentencing discount is warranted by virtue of your remorse. In his most recent report, Dr Barth refers to your empathy and remorse. The supportive letter from Margaret Jansen also makes reference to your remorse for the offending. Significantly, you gave evidence before me at your plea hearing on 25 June 2024 and expressed your heartfelt remorse for your offending conduct, and conveyed your remorse and apology to the victims, noting that Ms Richards and her family and others were in Court at the time. In my view, you were honest and forthright in your evidence before me. Furthermore, a letter from you dated
9 September 2024 has been provided to the Court.[19] In that letter, you have explained in some degree of detail the benefits that you have obtained from your psychological treatment both with Mr Boxer and the Men’s Behaviour Change Program. Your commitment to therapy has extended to two additional phone sessions with an additional counsellor from another organization. Significantly, in your letter you indicate:
'I can see that my inability to deal with my insecurities led me to act in ways that are completely unacceptable … I can also see that the way I reacted to the breakup with [Kayla], was completely inappropriate and my behaviour was unacceptable. I feel deep remorse for the emotional and psychological pain I have caused to [Kayla], and for the physical emotional and psychological pain I have caused to [Mr Mitchell]. … I take full accountability and responsibility for my actions and I understand that the way that I act and react are solely of my choosing, and it is my responsibility to deal with my own feelings safely.'
[19]Exhibit J
48In my view, real remorse is borne necessarily of true insight into offending behaviour. I am satisfied in your case that you are both insightful and therefore truly remorseful for your offending. This all does bode well for your prospects of rehabilitation, and decreases the need for any penalty to reflect the sentencing purposes of specific deterrence and community protection.
49It is now almost two and a half years since your offending. You have had these proceedings hanging over your head now for an extended period of time. Much of this delay of course is by virtue of your decision to exercise your rights to take this matter to trial until the late resolution of the matter. It also cannot be forgotten that your victims have also had to live with this matter hanging over their heads for a protracted period of time. However, the fact remains that during the intervening period, in addition to dealing with the understandable anxiety caused by criminal proceedings hanging over your head, you have not reoffended, and indeed, you have engaged in meaningful treatment related rehabilitation. For this you are to be commended.
50As I indicated at your sentence indication hearing, I am satisfied that a further mitigatory allowance is warranted due to the risks and impacts of potential deportation in your case. You are not an Australian citizen. Your visa status is that of a resident return (Subclass 155). I accept that you have made your life in Australia for many years since 2005. Your employment and other interests are in Australia. Whilst you have family back in the United States, I am satisfied that you are well and truly connected to Australia as opposed to your country of origin. Pursuant to the relevant provisions of the Migration Act 1958, I am satisfied that there exists in your case a risk of visa cancellation and deportation. While, given the specifics of the relevant provisions, deportation is by no means certain, I am satisfied that it nevertheless represents a real risk such that, pursuant to the principles articulated in the decision of Allouch,[20] a mitigatory allowance is warranted having regard to the risk of deportation. At the very least, your circumstances would understandably cause considerable anxiety on your part, warranting a mitigatory allowance.
[20]Allouch v The Queen [2018] VSCA 244
Final matters
51In formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offences to which you have pleaded guilty, in particular cases dealing with family violence related offending. Clearly, general deterrence looms large as a sentencing purpose in your case, and there is a need to denounce your serious offending. Previous sentencing decisions have emphasized these matters, and courts have, particularly in relation to the aggravated burglary offence, frequently sentenced offenders to sentences of imprisonment of some duration. For the reasons I have explained, whilst they remain relevant, specific deterrence and community protection are not as prominent in the sentencing exercise in your case.
52The prosecution submitted that the appropriate sentence is one requiring an immediate term of imprisonment, either with a non-parole period or in combination with a Community Correction Order. In contrast your counsel submitted that a Community Correction Order alone was appropriate. In that regard, you have been assessed as suitable for a Community Correction Order, with various conditions being recommended, and the details with regard to that assessment were contained in the extended presentence assessment report dated 19 August 2024 to which I have had regard.
53On 10 July 2023, I gave a sentence indication in this matter. I then indicated that your offending in my view was simply too serious to justify a Community Correction Order on its own. I indicated that were you to plead guilty to the charges then before me, subject to a favourable assessment by the Office of Corrections, I would likely impose a combination sentence involving a sentence of 12 months’ imprisonment followed by an appropriately constructed Community Correction Order. Clearly I am not bound by the indication then given. In any event, there are in my view a number of significant matters postdating the sentence indication which impact on my sentencing discretion today.
54Whilst your plea of guilty was delayed from July 2023, you are now not facing the stalking charge which was then present before me. Given the timing of your plea of guilty, there is now no mitigatory allowance warranted due to the impacts of Covid-19 on court delays, or the impact of Covid-19 on the custodial setting. Whilst I was not able to make a positive finding with regard to remorse, as I have indicated I am now satisfied that you are remorseful such that a sentencing discount is warranted. You have now engaged in a sustained period of treatment, and I am satisfied that you have improved insight in relation to matters underpinning your offending. I agree with Dr Barth – from a treatment perspective you have now done everything that could reasonably be expected of you. Whilst your situation was necessarily somewhat opaque at the sentence indication hearing, I have now made a positive finding with regard to your prospects for rehabilitation, which decreases the need for community protection.
Sentence to be imposed
55Whilst in my view your rehabilitative progress since the date of your offending is to be commended, and a sentence of imprisonment would necessarily interrupt your good therapeutic progress with Mr Boxer in particular, my task in sentencing extends beyond an assessment as to your personal circumstances and rehabilitative efforts. The fact remains that you engaged in completely unacceptable serious criminal offending in a family violence context. Your appalling conduct has caused great pain and suffering to Ms Richards in particular. Having carefully considered all of the matters relevant to sentencing, and consistent with the parsimony principle, I have concluded that your offending calls for a sentence which incorporates a period of imprisonment. I have reduced the sentence of imprisonment because of the significant mitigatory matters to which I have referred. Following the completion of that sentence, you will be subject to a Community Correction Order.
56
In relation to both charges on the indictment, those offences founded on the same facts or forming part of a series of offences of a similar character, you are convicted and sentenced to an aggregate sentence of five months’ imprisonment. In addition, upon completion of this term of imprisonment, I order that you undergo and complete a Community Correction Order. The duration of the Order will be
18 months. In addition to the core conditions which attach to any Community Correction Order, I order that you be subject to the following additional conditions.
57
That you perform 150 hours of unpaid community work over the period of
18 months, and that you participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
58Pursuant to the section 48CA(2) of the Sentencing Act, I make an allowance for 50 hours of the unpaid community work which can be credited towards the treatment and rehabilitation condition.
59Pursuant s6AAA of the Sentencing Act I declare that had you pleaded not guilty but been found guilty by a jury at trial, I would have imposed a total effective sentence of three years’ imprisonment with a two year non-parole period.
60Mr McKenry, are there any ancillary orders?
61MR McKENRY: There are, Your Honour. The prosecution says that there be a forfeiture order and a disposal order. The disposal order is in regard to the accused's shirt and two pairs of shoes, and the forfeiture is in regard to a mobile phone, laptop and associated electronic equipment, and I will have a copy of that provided to the court.
62HIS HONOUR: Any opposition to those?
63MR RATTRAY: Could I just take some instructions, Your Honour? I only just received those.
64HIS HONOUR: Yes, would you like a copy of the Community Correction Order to take down to the back with you?
65MR RATTRAY: Yes.
66HIS HONOUR: Just if you could go through the conditions with your client to ensure that he understands the nature of the conditions and the consequences should he breach the Community Correction Order. Without reasonable excuse he can be prosecuted for breach, which carries a maximum penalty of three months' imprisonment in addition to which he can be resentenced.
67MR RATTRAY: Yes, Your Honour.
68HIS HONOUR: We will just have that document printed for you, Mr Rattray. Just whilst you are approaching your client, Mr Rattray, can you ascertain whether there are any management issues he would like me to noted?
69MR RATTRAY: Yes, I will, Your Honour, thank you.
70MR RATTRAY: The ancillary orders are to be made by consent, Your Honour.
71HIS HONOUR: Yes. Any custody management issues?
72MR RATTRAY: It is my client's first time in custody.
73HIS HONOUR: Yes, that will be noted on the documentation. Thanks, Mr Amato can be removed, thank you. We will adjourn.
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