Director of Public Prosecutions v Anglin

[2022] VCC 483

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

AT LATROBE VALLEY

CRIMINAL DIVISION

CR-21-00890

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLAIRE ANGLIN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2022
CASE MAY BE CITED AS:	DPP v Anglin
MEDIUM NEUTRAL CITATION:	[2022] VCC 483

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	LACW

HIS HONOUR:

1Claire Anglin, you pleaded guilty to:

(i)one charge of causing injury recklessly;

(ii)one charge of intentionally damaging property;

(iii)and one charge of home invasion.  Those crimes carry maximum penalties of 10 years, 10 years and 25 years respectively.

2You are now 42 years of age and you pleaded guilty in the ultimate, I accepted that plea of guilty as at least now accompanied by appropriate remorse.  The delay in the plea of guilty may have been partially due to you receiving over-optimistic advice I suspect in terms of running a trial but be that as it may you must get the utilitarian benefit of that plea of guilty.  In these times you obviously get the additional benefit of the matters described in Worboyes.  The time that you spent in custody as I recollect, would have occurred during Covid and again, that is taken into account. 

3You do have prior convictions involving assault from some time ago, in your particular situation with your particular problems your criminal history is not of great concern to me. 

4There has been a delay in the proceedings, which is basically affecting all proceedings at the present time, but I take that into account as well.

5There's a summary matter of offending whilst on bail, I simply make that 7 days concurrent. 

6The situation is that the charge of home invasion is a charge which under s52H of the Sentencing Act must carry a custodial sentence and not a combination sentence unless there are mental health issues, and I would not be satisfied on the balance of probability of those, that there were substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3. And I am aware of the matters I must not take into account, and also aware that in determining whether there are substantial and compelling circumstances parliaments intention, and it is (a) and (b) whether cumulative impact of the circumstances of the case would justify a departure from such a sentence.

7I have had very helpful submissions from both parties, and it is my view that in this situation there are substantial and compelling circumstances and that when I am determining that it seems to me that the cumulative impact of the circumstances of this case does indeed justify a departure from such a sentence and in my personal view it demands it. 

8Firstly, on that point, the offending of the home invasion is at the low end of the range and the Crown concede it's at the lower end.  It's a situation where you've already been in custody for 144 days and have then been released.  What is the extraordinarily unusual situation here is that after being released with your background and in your early 40s you were able to complete six months residential at Odyssey.  Those who practice in the criminal law know what a very, very difficult task that is and it seems to me that that in itself is of such rarity that I find it compelling. 

9Also, in terms of the overall impact of all these matters, you started off from what would appear to have been a relatively privileged background as a child, and from the birth of your first child it appears to have all gone downhill from there from a situation of post-natal depression and then mental issues after that. 

10By the time this offending occurred on 3 October 2020 you had gone from being effectively in 20 years a year 12 student at Genazzano to a homeless, drug addicted, alcohol addicted person.  You had fallen in with your co-accused, the self-pitying Mr Alford, and in these circumstances the offending occurred.  I do not find that the mental issues as such as to invoke the first two subsections, but the situation is this, you were then able to get into Odyssey and to, as I said, spend six months in the residential program. 

11It is a situation now where you are still on bail, and you have your own accommodation, and you are essentially getting on in life and trying to work as a hairdresser.  It is a circumstance where you spent six very, very difficult months learning how not to associate with other drug addicted persons, and it would seem to me that to put you back into Dame Phyllis where probably half the people are simply biding their time so that they can get out and renew their addictions, would be an act of putting you in personal danger in a sense, and in my view would be tantamount to, in all these circumstances, an act of cruelty.

12Therefore, I find that there are special reasons involved, and that stands as my ruling on that.  Plus, I think, and do not know whether this has been debated elsewhere or not, but it seems to me that the decision of Worboyes has to change that concept to a certain extent as well as was put to me by another prosecutor the other day.  When that legislation was passed it was not anticipating a worldwide pandemic of the size that we have been enduring.

13

In any event, the circumstances of it were that you had hooked up with, if I can use the vernacular, Mr Alford, he is a man with an extensive criminal history and clearly at that point in time, an alcohol problem.  I have already sentenced him to

22 months with a 16-month minimum, that parody is of some value, it plays no part in whether there are special reasons or not, but I am aware of that as I go through this sentencing process. 

14He had met the victim and the Corio train station and the two of you, that is you and Mr Alford, had been seeing the victim on occasion and being at his house.  On the evening of Monday 28 September 2020, you were at his property and when Mr Alford required treatment for a suspected drug overdose, police were called, an ambulance were called, and he was taken away.

15On the afternoon of 3 October, the partner of the victim was at her place of work when she saw Mr Alford staggering along and she endeavoured to ring her partner concerned that Mr Alford would go to their house.  Around that time a neighbour of Mr Sharman was asked to bring over some screws and he came and found you, Alford and Sharman arguing in the back of the victim's property. 

16You and Alford were yelling at Sharman accusing him of sexually interfering with Alford and lying to his partner about it.  You claimed to be in possession of videos of him performing oral sex on Alford and stated that you would delete the videos if you were provided with marijuana and Valium; Alford demanded his diary.  You were also yelling that you needed to use the toilet inside the property, he was telling you to use the outside toilet, but you insisted you wanted to use the inside toilet.  You were very agitated and at times apparently, were screaming.

17The neighbour observed quite a lot of this and tried to get you and Alford to leave the property.  After about four minutes, Alford moved closer to Mr Sharman, stood within a metre of him and headbutted him, it connected with the bridge of his nose.  He then stood back, the neighbour then left and rang the police.  You walked up the driveway and spoke to the neighbour and you were told to leave as the police had been called. 

18

Alford then punched Sharman to the face, and that is recklessly causing injury,

Mr Sharman went back into the house, told you two not to enter, he picked up a broom and a kitchen knife, put the knife down.  You picked up a pot plant and threw it at the glass panel back door, and that is the criminal damage charge.  And although two of the doors glass panels were already broken, so I am told, the door was not locked, Alford pushed the door open and entered the house and you went in after him; that gives rise to the charge of home invasion.

19There was a scuffle in the house apparently between all three of you and the neighbour heard banging and crashing and heard a female voice yelling 'hurt him, hurt him' coming from inside the house.  Clearly, whilst Alford was the assailant in all this, you were certainly, it would appear to me at least, encouraging him significantly.

20Finally, Sharman answered the phone, you left the property, saw Mr Sharman's partner approaching and said to her, 'your house is being smashed, don't get hurt', and at that point in time Mr Alford and Mr Sharman were still in the backyard yelling at each other.  Then Mr Alford seriously attacked in my view, (indistinct words) not serious injury, but seriously attacked Mr Sharman, punched him, he fell to the ground, stomped on his head and continued on from there.

21You were involved apparently in attempting to punch Mr Sharman at that stage, and effectively, that is where the matter ended.  You were ultimately arrested and interviewed and here we are to pass the sentence. 

22The offending is obviously serious, though at the low end of home invasion, I think the assault was, as I think I said when I sentenced Mr Alford, was probably more serious than the home invasion, it calls for the application of general and specific deterrence, denunciation and appropriate punishment. 

23In these circumstances, bearing in mind the position you found yourself in of homelessness, in fact you spent the previous night in emergency accommodation as I understand it, drug affected, alcohol affected, mentally unwell, that in those circumstances all this took place.  And I think it has to be viewed in that situation in which you found yourself.

24I then look at matters personal to you, I have mentioned your prior criminal history, the matter resolved subsequent to a sentence indication.  I have already mentioned, I think Verdins has some impact in this, but not to the level that was put by the defence; I accept the Crown's submission on that. 

25You grew up in the Park Orchards area, your family remain supportive of you, you have two older siblings, you attended Genazzano College, you completed VCE, did an apprenticeship for hairdressing, at times have run your own business.  You apparently have been diagnosed with schizoaffective disorder some 15 years ago, you have suffered from post-natal depression and apparently at some stage you have been diagnosed as having a borderline personality disorder.

26You have had an extensive history, which I accept, of psychiatric intervention through short term admissions in relation to acute mental health episodes, including suicidal ideation and overdoses.

27As I already indicated, you completed a six-month drug and alcohol rehabilitation program through Odyssey House, and I have the documentation confirming that which has been tendered and which I have relied upon. 

28I have also already mentioned the matter of delay, I have already mentioned that you have now substantially improved your position, you have found accommodation, you are getting drug and alcohol abuse treatment, and you are continuing to receive that treatment. 

29I have had you assessed for a Community Corrections Order, and it is my intention that treatment will continue for a couple of years at least.  It is a situation where the delay that has occurred here has enabled you to effectively rehabilitate and it works both ways in that sense that it has given you that opportunity, but I still take it into account.

30Your illicit substance abuse has been sporadic, and alcohol dependency after the birth of your first child apparently became very substantial.  I understand that in recent times that has been brought under control by the treatment you have received and obviously, the time that you have spent in Odyssey.

31I have read the reports about significant mental health disorders, I have read all those and I do not see that they are a causation as such in this situation, but I think that in all the circumstances you are entitled to great recognition for what you have done.  For a woman in your circumstances at the age of 40-41 to complete that Odyssey program I find somewhat astonishing to be perfectly honest, it is a rare occurrence indeed.

32The prospects of your rehabilitation I think are now good, the risk of you reoffending if you continue to rehabilitate, I think would be very low.  Corrections have assessed you as moderate and that is probably about right, it will all depend on how you can stay away from alcohol and the scenario of desperation if you like, in which you had been living.

33I have read the report of Mr Simmonds and I take those matters into account.  I do not think I need to go through the relationships and the like in the past, and he at paragraph 18 has a description of your history and the involvement with mental health, and indeed, in March 2020, not long before the incident took place, you were experiencing psychotic symptoms and again, I do not think I need to go through all that detail.

34He points out that your mental state over the years has been unstable and that there have been as I have said, numerous contacts with mental health services.  You have had difficulty sleeping, had nightmares and again, I do not think I need to go through all that. 

35You have a significant history of trauma in recent years, but there is no evidence to suggest that you have a post-traumatic stress disorder, but you have clearly up until recent times gone downhill very badly in your life.

36I have taken into account the letter of Dr Karty, I have taken into the matters from Odyssey, which I have already referred to, and I do not think I need to take it all much further than that. 

37I accept that you do have housing, and I accept from the report from Women's Housing Limited that you have now been successful in gaining work as a hairdresser and that is all very much to your credit.

38They are the matters that are involved here, as I say I think yours in some sense, is a sad, sad case with what hopefully is going to be a happy ending.  I am well aware of the principles outlined in cases such as Toumngeun and DPP v Tokava where the president of the Court of Appeal said:

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that - apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime'.

39So, in taking all those matters into account, I think the time served plus a CCO is sufficient. 

40So, on the charges, you are convicted and sentenced to an aggregate of 144 days. 

41I direct that those 144 days be recognised as having been served under this sentence.

42Also, on the three charges, if you agree, you will be placed on a Community Corrections Order, it will be with conviction, it will be for a period of two years, it will have the conditions of assessment and treatment for drugs, assessment and treatment for alcohol, mental health assessment and treatment, and supervision.  It is a situation where that gives you people to talk to, it is important to understand that if things start to go awry or are not working properly, whatever you do talk to people. 

43That CCO can always be varied to accommodate changing situations and if things do start to go wrong, and I sincerely hope they will not. Do not simply put your head in the sand. 

44In this situation, pursuant to s6AAA of the Sentencing Act, I say that but for your plea of guilty I would have sentenced you to be in prison for a period 18 months with a minimum term of 12.

45Do you agree to that Community Corrections Order?

46OFFENDER:  Yes, I do, please, Your Honour.

47HIS HONOUR:  All right.  Well, I'm able to take that orally pursuant to the Covid legislation, I'll sign it now.

48OFFENDER:  I apologise for not being able to see you in person.

49HIS HONOUR:  No, that's all right.

50OFFENDER:  (Indistinct words).  And also, just one - one little question, I'm - I'm a hairdressing teacher, with this conviction does that mean I won't be able to like teach my girls to cut little kids hair and stuff like that?

51HIS HONOUR:  You'll have to take that up with your lawyers.

52OFFENDER:  I didn't know that, okay, thank you, Your Honour.

53HIS HONOUR:  Yes, all right.  No other orders I need to make, gentlemen?

54MR SONNET:  No, Your Honour.

55HIS HONOUR:  No, nothing else, Mr Fitzgerald?

56MR FITZGERALD:  No, Your Honour.