Director of Public Prosecutions v Aramia
[2022] VCC 2254
•17 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00225
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL ARAMIA |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2022 | |
DATE OF SENTENCE: | 17 November 2022 | |
CASE MAY BE CITED AS: | DPP v ARAMIA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Causing injury intentionally – Aggravated burglary – Family violence – Guarded prospects of rehabilitation
Cases Cited:DPP v Meyers [2014] VSCA 31; Pasinis v The Queen [21014] VSCA 139; Smith v The Queen [2020] VSCA 139; Worboyes v The Queen [VSCA] 169.
Sentence: Imprisonment for a period of 2 years and 8 months. Non-parole period for 1 year and 11 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Patterson | Office of Public Prosecutions |
| For the Accused | Mr T. Battersby | Emma Turnball Lawyers |
HER HONOUR:
1.Daniel Aramia, you have pleaded guilty to one charge of aggravated burglary and three charges of causing injury intentionally. The maximum sentence for causing injury intentionally is ten years’ imprisonment. The maximum sentence for aggravated burglary is 25 years’ imprisonment.
Background
1The summary of your offending is set out in the prosecution opening dated 17 November 2022, marked as Exhibit A on the plea.[1]
[1] As the plea and sentence proceeded on the same day the summary of offending was not read out. As indicated, a summary of this would be included in the court’s revised reasons.
2At the time of offending you were 37 years of age. You commenced a relationship with the complainant Sandra Mulligan[2] in 2007. You separated in 2012 shortly after the birth of your son Blane Mulligan.[3] Ms Mulligan lives with Blane at her address in Toorak.[4] You had remained in contact with Ms Mulligan since your separation because of your child.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
3There is a history of family violence incidence in the relationship. On 14th of February 2021 police applied for an Application & Warrant on behalf of Mulligan. At the time of the offending, this had not yet been executed and was still outstanding.
4In April 2020, Ms Mulligan allowed you to live with her and Blane because you had stopped using drugs and she wanted you to help her care for your son.
5On the 5th of April 2021, Ms Mulligan returned from visiting a male friend in Sydney and when she arrived home you were waiting outside of her house.
6You immediately confronted her about the friend and demanded that she give you her mobile phone. When she refused to you punched her in the head and face multiple times. As a way to have you stop, she told you she would stop seeing her friend and gave you her mobile. As a result of this assault she suffered a cut to her right eye, a swollen nose, cut to her right ear and bumps on her forehead. This is the basis of charge 1. Ms Mulligan didn’t report the incident at the time because of threats you made to her.
7The following day, on the 6th of April 2021, you attended Ms Mulligan’s address and knocked on the front door. Ms Mulligan let you inside her house because your son was present at the address. She wanted peace and was in fear of you.
8Once inside the address, you told Ms Mulligan you wanted to talk, and you apologised for your actions the previous day. You then began to look for a bracelet that belonged to you. When you couldn't find it you became aggressive towards Ms Mulligan. You accused her of hiding your bracelet before punching her multiple times to the front and back of her head. You grabbed her by the hair and smashed her head against a wall. She tried to defend herself, you kicked her again and threatened to further harm her if she called police. That is the basis of charge 2, intentionally cause injury.
9Upon eventually finding the bracelet, you apologised to her and left the address. Ms Mulligan didn’t report this incident at the time due to her fear of you.
10On the 24th of April 2021, you stayed the night with Ms Mulligan at her address. The following day on the 25th of April 2021, Ms Mulligan had a conversation with you and told you that your relationship was not going to work out. You were angry at this, and you left the address at about 10.00am. After leaving the address you attempted to call Ms Mulligan on her mobile phone approximately six or seven times which she ignored.
11At approximately 3.00pm, you attended Ms Mulligan’s address and began banging on the front door, but Ms Mulligan refused to open the door. You stated ‘just open up, I want to talk’, before threatening Ms Isidro about revoking the intervention order. As a way to get you to leave, she told you through the closed door that she would revoke the order.
12You went around the side of the house and into the backyard where you smashed a bedroom window to gain entry to the house. This is the basis of charge 3, aggravated burglary.
13You immediately confronted Ms Mulligan about who she was talking to on her mobile phone. She told you she was talking to a friend and she tried to get away from you but you followed her. She placed her mobile phone under the bed in the main bedroom to hide it from you. You began punching her to her face demanding her phone. She fell to the ground, covered her head in an attempt to protect herself. Your young son, Blane, yelled at you to stop. You continued to strike at her and started to kick her in the head and body. You lifted her off the ground by her hair while continuing to strike her.
14Ms Mulligan managed to run out the front of the house and ask a neighbour to call police for help. You followed her and grabbed her by the hair, dragging her back inside the house, while she was pleading with you to stop. You grabbed Ms Mulligan with one hand by the throat and strangled her to the point where she thought she was going to lose consciousness and die. Blane said to you ‘please don’t hurt mum anymore’ before you stopped. Blane was pleading with you to stop and Ms Mulligan told you she’d give you her mobile phone so you would stop hurting her and calm down. That is the basis of charge 4, intentionally cause injury.
15You let go of Ms Mulligan and walked out the front of the house. Ms Mulligan used the opportunity to lock the front door and call triple zero.
16At approximately 4.58pm police arrived at Ms Mulligan’s address but you had already fled the address. Ms Mulligan was in the lounge room holding a blood splattered face washer to her nose. Her nose and right eye were bruised and swollen and she appeared distressed and was shaking. Photographs were taken of her injuries.
17Police observed the broken window in the back bedroom and took photographs of the damage.
18At 2.45am on 26 April 2021 police attended Western Health Hospital and spoke with Ms Mulligan. Ms Mulligan had a neck brace on and presented with severe swelling to her face. Police obtained a statement from Ms Mulligan.
19A VARE statement was taken from your son Blane on the 26th of April 2021 in relation to these matters.
20You were arrested on 26 April 2021 and you were taken to the Werribee Police Station for interview. You made a no comment record of interview and were subsequently remanded in custody, where you have remained.
Gravity of the offending
21Your offending against your ex-partner is serious and completely unacceptable. Amongst the charges I regard the aggravated burglary as the most serious charge, as reflected by the maximum penalty set by Parliament. Your offending occurred within the context of an intimate, or previously intimate, relationship with Ms Mulligan. In your case, specific and general deterrence, denunciation and just punishment are prominent sentencing factors.
22As stated in Smith v The Queen:[5]
…The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence – in whatever context – should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.
[5] [2020] VSCA 159, [7].
23The prevalence of family violence also makes community protection a significant sentencing consideration and general deterrence of fundamental importance in your case.[6]
[6] Pasinis v The Queen [2014] VSCA 97, [53].
24In assessing the objective gravity of the aggravated burglary charge, I make the following findings: Your intent at entry was to assault Ms Mulligan, as detailed in the charge and reflected in the circumstances of your offending. While the offending occurred in the early afternoon, entry was achieved by you smashing a bedroom window which I accept would have been frightening and confronting. Importantly, you were not armed or carrying a weapon at the time of your offending, and you were alone. You were someone that Ms Mulligan was frightened of, and had in only the days earlier, committed violence against her and you had also tried contacting her earlier that day. The offending occurred in Ms Mulligan’s home where she was entitled to feel safe and secure.
25In all the circumstances, this is an inherently serious charge and I accept the prosecution submission at the sentence indication that your offending lies in the medium range for this type of conduct.
26In relation to the intentionally cause injury charges, again, this represents serious offending. Your attack on Ms Mulligan was shocking, particularly on the last occasion which involved vicious and protracted behaviour, partly in the presence of your young child, which I consider is an aggravating factor. You behaved in a violent, entitled and completely unacceptable manner.
27In assessing the gravity of your offending on the intentionally cause injury charges, I take into account the level of injury and accept the prosecution submission at the indication hearing that they lie somewhere in the middle; not at the highest and not at lowest end. The injury alone is not determinative, but rather the nature and circumstances of the offending, here being violence perpetrated against an ex-partner, is important. Clearly charge 3, as I have already indicated, is the more serious example of the intentionally cause injury charge.
28Considerations of totality are important in your case. Charges 1 and 2 occur within days of each other. It is also not entirely clear what the precise injuries were that arose from charge 1 and 2. As the prosecutor stated, given their proximity to each other it was difficult to disentangle the injuries sustained on each occasion. I proceed on this basis for the purpose of sentencing. Also, while charges 3 and 4 are separate and deal with separate offending, they occur on the same day and as part of the one incident.
Victim impact
29I received a victim impact statement from Ms Mulligan. This was read out today so I won’t refer to it in great detail. It does speak of the profound impact of your offending and of i’s ongoing and pervasive effects on her. She states that you have drastically caused a deterioration in her life - emotionally, socially, physically and financially. She states:
'The injuries that I sustained was enough for me to be traumatised for the rest of my life. I've never endured so much pain as the pain you've inflicted on me. I was hospitalised and treated for the injuries you've caused. I no longer feel safe in my home. I'm in constant fear, anxious that someone will break into my house and attack me again. I constantly think about the incident on a daily basis and it's so difficult for me to overcome all the physical abuse you've inflicted on me. You made me feel useless and unworthy as a mother and made me somehow think that it's what I deserve, because I chose to keep in contact with you for the sake of our son.
'Because of you [further, she states] I don't go out or socialise with friends as my mental health has declined. I've no more motivation in life. You took that away from me. I feel unsafe when I venture out by myself as panic and anxiety overwhelms all my senses for no particular reason.'
30I take into account the impact of your offending upon Ms Mulligan.
Plea of guilty
31This matter resolved after a sentencing indication hearing. Your plea of guilty is important and has spared further distress and delay to witnesses, in particular Ms Mulligan and your son. While it has not been entered at the earliest opportunity and a contested committal did proceed, it entitles you to a substantial discount. By pleading guilty you have indicated a willingness to facilitate the course of justice and your plea carries with it important utilitarian value, heightened also due to Worboyes considerations.[7]
[7] Worboyes v The Queen [2021] VSCA 169
Personal circumstances
32Your personal circumstances were canvassed by your Counsel, Mr Battersby and were also outlined in the 2020 and 2022 psychological reports of psychologist, Daria Sizenko.
33In brief, you’re now 38 years of age. You grew up in Noble Park. You have one younger brother and both your parents are now in their 60s. You enjoyed a stable childhood, though your father was a heavy drinker and used violence as a form of discipline.
34Your performance at school was poor and you were placed in specialised classes. You left after completing either Year 8 or 9 and never returned to formal education. You taught yourself to read by looking at car magazines. Prior to 2017 you had a good employment history, working steadily in hospitality and then as a mechanic. Apparently you are a talented motorcycle mechanic and have won awards for custom bikes you have designed and assembled.
35You first met Ms Mulligan when you were 15 years of age and working in a pizza shop. This has been your only serious relationship and there is one child of the relationship, Blane, now 10 years of age. You and your partner did have another child, Max, who tragically died after his birth in February 2018.
36Your criminal history didn’t really commence until later in life, when you were aged 33, in around 2017. You were remanded in the days following your son’s death and you were unable to attend his funeral. Understandably, you have unresolved grief in relation to the premature loss of your son and it appears from Ms Sizenko’s latest report that you continue to struggle with these issues.
37You first used methamphetamine in your mid-twenties on a recreational basis. Following the death of Max in 2018, you started smoking methamphetamine daily. After that first period on remand in 2018 you continued to use drugs and engage in offending behaviour.
38The 2020 report of Ms Sizenko opined that your presentation at that time was consistent with that of Persistent Complex Bereavement Disorder and that you had been affected by grief since the death of your son. At that time she considered it evident that you would require ongoing therapeutic intervention to assist your mental state.
39As for your prior criminal history, you have been dealt with for a range of offences including burglary, criminal damage, drug offences and breaching community correction orders (CCO’s) and bail conditions. You have also been before the Court on charges of contravening family violence orders in 2017 and 2018 and charges of threatening to inflict serious injury. You have received a variety of dispositions including fines, CCO’s and terms of imprisonment. Your current period on remand represents the longest time you have to date served in custody.
40Since your first period on remand you have spent roughly half of your time imprisoned, the current period representing your fifth time in custody.
41On your release from custody in May 2020 you had ceased drug use which improved your relationship with Ms Mulligan. While you had separated from Ms Mulligan you had been spending nights at her house, including on the 24 April 2021, by agreement.
42In the period leading up to your offending, you were not working due to COVID-19 lockdowns. You would often spend your days helping your son with remote schooling. Unfortunately at the start of 2021 you relapsed into drug use and at the time of your offending you were heavily using methamphetamine.
43I take into account in sentencing you your personal history and also your prior criminal history, relevant as it is in particular to your rehabilitative prospects and specific deterrence.
Conditions in custody
44I also take into account the conditions in custody due to COVID-19. You have been on remand since April 2021 and I accept that you have faced harsher and more onerous conditions during this time. You have been transferred within the prison system on several occasions, resulting in periods of quarantine. I was told that you are now in protective custody. Also, in early 2022 you were hospitalised due to your COVID-19 infection.
45Despite these challenges you have used your time in custody well, working as a billet in several roles. You have also remained drug free in custody. I also note that, while in custody, you have been concerned for your father who has been diagnosed with cancer.
Prospects of rehabilitation
46Your criminal history is obviously a concern, along with the nature of this offending. To your credit, you have assumed responsibility for your conduct by pleading guilty. Also, on your behalf your Counsel submits that you accept that you have perpetrated significant family violence against Ms Mulligan and you regret your behaviour. You understand the relationship is over and want no further contact with her. There is an active intervention order in place protecting Ms Mulligan. You wish to see your son again, whom you have not seen since your remand. You will pursue the appropriate legal avenues available to you.
47I take into account the opinions expressed by Ms Sizenko and also her assessment of your risk factors in her latest report. She considers that you meet the criteria for stimulant use disorder and also major depressive disorder. She states at p6 of her most recent report:
'Mr Aramia's lack of insight and judgment regarding the impact of his substance use on his behaviour, his relationship with others and his experience of pain, emotional and physical, are also significant contributors to his substance use. It's the writer's opinion that
Mr Aramia's persistent substance use and dysregulated behaviour are the major contributors to his current offending.'
48You have the support of your family, I accept, and can reside with your parents on your release. You have also been offered full-time work or have available to you full-time work at Peter Stevens Motorcycles in Dandenong. I consider in all the circumstances that your prospects of rehabilitation are guarded. This is your longest period in custody and it would be hoped, and I am told, that you have had time to reflect on your conduct and that you have remained drug-free. It is essential to your rehabilitation that you do not relapse into drug use upon your release into the community and that you work upon developing further insights into your behaviours.
Sentencing principles
49The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. As I’ve already stated, denunciation and general deterrence loom large in this case. As the Court’s have stated, in the context of domestic violence –
'Those who might in a mood of anger or frustration or bitterness contemplate this kind of violent entry into the home of a former spouse or partner, must realise that if they do so they will almost certainly spend a long time in prison[8].'
[8] DPP v Meyers [2014] VSCA 314, [46].
50I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. I have also had regard to the current sentencing practices for the offences of intentionally cause injury and aggravated burglary. They have assisted me but each case is unique and ultimately turns on its own facts.
51I have also taken into account the principles of parsimony, proportionality and totality in your case. There was no dispute between the parties that a term of imprisonment was warranted, given the nature and seriousness of your offending. On your behalf your Counsel submitted that the Court should consider imposing a straight term of imprisonment. I indicated my concerns with such a disposition. I regarded the offending as too serious to warrant a term of imprisonment that would not require a non-parole period. I also considered that a straight sentence would do little to reflect, or facilitate, rehabilitative considerations and, in the long term, community protection.
52The only just and appropriate sentence in your case is a term of imprisonment and one attracting a non-parole period, as I indicated at the sentence indication. I take into account all of the submissions made by the respective parties, both at the plea hearing and at the sentencing indication hearing.
Sentence
53In respect of the charges, I impose the following sentences with conviction:
54Charge 1, intentionally cause injury, nine months' imprisonment.
55Charge 2, intentionally cause injury, eight months' imprisonment.
56Charge 3, aggravated burglary, two years' imprisonment.
57Charge 4, intentionally cause injury, 15 months' imprisonment.
58The following orders of cumulation are made and intended to reflect totality considerations –
59Charge 1, three months, Charge 2 one month and charge 4 four months to be served cumulatively on charge 3, the base sentence. on the base sentence four months on Charge 4. That should arrive at a total of two years and eight months' imprisonment.
60HER HONOUR: That is 32 months. I am setting a non-parole period of 23 months' imprisonment.
61Pursuant to s18, I declare that you have served 570 days as pre‑sentence detention.
62
And I can indicate, pursuant to s6AAA, that but for your plea of guilty,
Mr Aramia, and the Worboyes considerations I have referred to, I would have imposed a sentence of four years and three months' imprisonment as a head sentence, with a non-parole period of some three years.
63HER HONOUR: All right. Thank you. Ms Patterson, before we complete this matter, there are apparently two summary offences that are still in our system that are not being pursued. You'll need to withdraw them.
64MS PATTERSON: Yes.
65HER HONOUR: Do you make application?
66MS PATTERSON: We make that application.
67HER HONOUR: All right. They're formally withdrawn. Parties, counsel, is there anything that I have missed?
68MR BATTERSBY: Nothing from me, Your Honour.
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