Director of Public Prosecutions v Anderson

[2014] VCC 524

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN ANDERSON

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	15 April 2014
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2014] VCC 524

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Fitzgerald
For the Offender	Mr P Murphy

HER HONOUR: 

1Benjamin Anderson, you have pleaded guilty to one charge of aggravated burglary, Charge 1; one charge of recklessly causing injury, Charge 2; and two charges of intentionally damaging property, Charges 3 and 4.  You have also pleaded guilty to two uplifted summary charges of failing to store a Category B long arm in a proper manner, Summary Charge 6, and failing to store cartridge ammunition in a proper manner, Summary Charge 7.  The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for criminal damage is ten years' imprisonment.  In respect of each of the summary charges the maximum penalty is 60 penalty units or 12 months' imprisonment.

2The prosecution sought orders for the taking of a forensic sample from you and compensation in respect of Charges 3 and 4.  The making of those orders was not opposed.

3The circumstances of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  In brief the circumstances are as follows.  You had been in a relationship with a young woman with whom you had had a child.  The relationship had difficulties and you separated during December 2012.  It appears from what your counsel said that from your point of view the relationship was not necessarily over.

4During the night of 16 August 2013 you went out drinking with friends.  Throughout that evening you sent abusive text messages to your ex-partner on 21 occasions.  The messages included phrases such as, slut, junky, die you cunt, go overdose, and two pictures of her nude which you had saved to your phone.

5At approximately 4 am on 17 August 2013 your ex-partner was in bed in her room with her new boyfriend.  Your son, who was 16 months' old, was in a cot close to the bed.  You suddenly burst through the unlocked door, dragged your ex-partner's friend out of the bed and threw punches at him.  He landed on the floor and you began to stomp on his head.  You then approached your ex-partner and were about to punch her when you were overpowered by your ex-partner's friend.  You then grabbed him by the throat in a choking fashion.  You both struggled and you were forced outside and the door was locked behind you.  Your ex-partner's friend received relatively minor injuries such as red marks and swelling of his neck and soreness to his neck.  It is those matters which give rise to Charge 1 of aggravated burglary and Charge 2 of recklessly causing injury.

6You then smashed a window of the main premises before being escorted off the property by your ex-partner's stepfather.  That gives rise to Charge 3 of criminal damage.

7After leaving the property you then broke a window in your ex-partner's friend's vehicle which was parked in the street.  That circumstance gives rise to Charge 4 of criminal damage.

8Following the incident you ran back to a friend's house.  That was where you were arrested.  You were then taken to your residence where police located an unsecured .223 rifle in the lounge room along with numerous rounds of ammunition which were in your house and in your vehicle.  Those circumstances give rise to Summary Charges 6 and 7.

9Whilst you were being conveyed to the police station you contacted friends in an attempt to create a false alibi as to your whereabouts at the time of the offending.  You participated in a record of interview with police but denied any involvement in the offences.  You said you were not there and that your ex-girlfriend was setting you up.

10In sentencing you I have taken in to account your personal circumstances.  You are 27 years' old.  You had a stable and unremarkable upbringing.  Your parents separated when you were about 11 but you remain close to both of them.  Both of your parents are in court to support you as was your sister.  Your godparents and a family friend were also in court to support you.  Recently you have been living with your father.  Your mother now lives in Darwin but has been in regular contact with you.

11Since completing your secondary education you have worked operating various heavy equipment including earth moving machinery.  You have done that work apart from a 12 month break due a to leg injury resulting from a car accident.  During that year you assisted with the care of your grandmother.  You have recently set up your own subcontracting business.  You have been very involved in work dealing with bushfires and bushfire rehabilitation.  You have no mental health issues and do not use illegal drugs.  You have no prior criminal history.

12A bundle of references was tendered as Exhibit 1.  Your mother and a longstanding friend of your family gave evidence on your behalf.

13Your counsel said in respect of this offending that you had been out at a hotel and had been told that your former girlfriend was seeing someone else.  You were shocked and angry.  You started drinking heavily and consumed far too much alcohol.  It was in that context that you sent the text messages.  You then got a lift back home.  The way you went back home with the person giving you a lift took you past where your former girlfriend was living.  At that point you asked to be dropped off.  You then went to her home.

14Your counsel submitted that the appropriate sentence in this case would be a Community Correction Order.  He submitted that apart from these offences you are and have been a young man of good character.  He also relied in mitigation of the sentence on matters including your plea of guilty, your remorse, and your behaviour since the offending.  Since the offending you have not re-offended and have been working long hours.

15The prosecutor submitted that a sentence of imprisonment to be served immediately would be the appropriate sentence.  He submitted that this was a serious example of aggravated burglary.

16Mr Anderson you have committed a very serious offence.  The maximum penalty for aggravated burglary reflects the seriousness with which Parliament on behalf of the community takes this type of offending.  You invaded the home of a person in the middle of the night.  You forcefully entered your former partner's bedroom with the intention of assaulting a person.  You did assault your former partner's new boyfriend and approached your ex-partner in an aggressive fashion.  You engaged in very aggressive behaviour which fortunately did not result in more serious injury.  You did all this despite your baby son being in the room.  On being ejected from the room you broke a window and then the window of the car.  It is clear that you did all this while you were angry and drunk.  The text messages you sent were not seen by your former partner before the aggravated burglary, but they demonstrate clearly your state of mind at that time.

17This was a confrontational aggravated burglary of the type described in R v Hogarth [2012] VSCA 302.  You went in to the room to confront your ex-partner and any man she was with.  The Court of Appeal in that case emphasised the seriousness of this type of offending.  What you did must have been extremely frightening and distressing for your ex-partner, her friend, and your child.  This was serious offending but I do not regard it as an example of aggravated burglary at the more serious end.  I do not consider that following current sentencing practices would result in an inappropriate sentence.

18I have taken in to account that you were by yourself and that there was a degree of spontaneity involved.  I accept that you may not have engaged in this offending if you had not been given the left passed the area of your ex-partner's home.  That said you were clearly thinking about the situation for some time that night and made the decision to be dropped off and to go to the house.

19I am treating the charges in respect of the firearms as a separate matter.  Your carelessness regarding those matters is very concerning but there is no suggestion that you intended any form of improper use for the gun or for the ammunition.  In those circumstances, given that you have no prior criminal history such as this, I consider that fines would appropriately deal with those offences.

20There are a number of matters which operate in mitigation of sentence in respect of the more serious charges.  You are entitled to a significant discount for your plea of guilty.  You have saved the trauma, expense, and inconvenience of a trial.  I also accept that you are now genuinely remorseful.  Clearly you were not remorseful just after the event when you tried to get out of trouble by asking friends for an alibi and suggesting to police that you had not been there.  It appears that very shortly after that you did take responsibility for what had happened.  I accept your mother's evidence that you genuinely regret what you did and have been hurt by the consequences which include not having been able to see your son.

21You have no prior criminal history.  The contents of the references provided and evidence given by your mother and a family friend demonstrate that you have been a hard working and reliable person who has not otherwise engaged in violent behaviour.  I accept that apart from this you have been a person of good character.  Sadly the courts frequently sentence people who are otherwise of good character but do something very wrong on one occasion. 

22You have a very good work history, you have family and community support.  You have no drug, and alcohol, or mental health issues.  You are relatively young.  I consider that you have very good prospects of rehabilitation.

23It is my view that despite the matters that operate in mitigation of sentence a term of imprisonment is the only appropriate sentence.  Such a sentence is warranted because of the seriousness of this offending and the need to appropriately reflect the sentencing purposes of just punishment, denunciation and general deterrence.  I consider that specific deterrence ought be given reduced weight in the sentence to be imposed, given your very good prospects of rehabilitation.

24General deterrence must be a very important sentencing consideration.  Emotional upset and anger in the context of relationships is very common.  People must understand that they need to control their behaviour and not respond to these emotional impulses with violent behaviour.  Getting drunk and acting aggressively in response to emotional upset causes enormous amounts of harm in the community, particularly within the context of intimate relationships.  People must understand that if they act as you did in such a situation they face the prospect of gaol.  Perhaps that will cause at least some people to step back and think before they act in this way.

25In setting the appropriate sentences and degree of cumulation I have taken in to account the matters in mitigation and that this will be your first sentence of imprisonment.  I have also taken into account the principles of totality and proportionality and the need to avoid double punishment.  The application of these principles has resulted in lower individual sentences that might otherwise have been the case.

26I have set a shorter non-parole period than I otherwise would have because of your relative youth, this being your first gaol sentence and your very good prospects of rehabilitation.

27Can you please stand up Mr Anderson?  On Charge 1 of aggravated burglary you are convicted and sentenced to 36 months' imprisonment.

28On Charge 2 of recklessly causing injury you are convicted and sentenced to ten months' imprisonment.

29On Charge 3 of criminal damage you are convicted and sentenced to six months' imprisonment.

30On Charge 4 of criminal damage you are convicted and sentenced to six months' imprisonment.

31In respect of Summary Charge 6 you are convicted and fined $750.

32In respect of Summary Charge 7 you are convicted and fined $350.

33The sentence on Charge 1 is the base sentence.  Two months of the sentence on Charge 2 and one month of each of the sentences on Charges 3 and 4 are to be served cumulatively on the sentence on Charge 1.  The total effective sentence is 14 months' imprisonment.  I fix 20 months as the period you will be required to serve before being eligible for release on parole.  But for your plea of guilty I would have sentenced you to a term of imprisonment of 50 months with a non-parole period of 32 months.  I declare that you have served five days of your sentence by way of pre-sentence detention which will be deducted administratively.

34I have made the orders for compensation sought.  I have also made an order for the taking of a forensic sample from you.  I have made that order because of the seriousness of the circumstances of the offending and because the making of that order was not opposed.

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I am required to inform you that at the time of the request, if you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then a sample of your blood can be taken and the police can use reasonable force to enable that forensic procedure to be conducted.  I am sure you will cooperate when they come to take the saliva swab from you.  Thank you, could you please sit down,

Mr Anderson?

36Mr Murphy and Mr Fitzgerald is there anything that you think that I have left out that I need to attend to by way of orders or other such matters?

37MR FITZGERALD:  No Your Honour.

38HER HONOUR:  Thank you.  Anything you need me to repeat by way of the sentence?

39MR MURPHY:  Nothing from me Your Honour.

40HER HONOUR:  Thank you very much.  Mr Anderson I hope that you make positive plans during your period of incarceration and that you after time reflect, and given your history, go forward from this and make a very positive contribution to the community and to your family.  Thank you.

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