Director of Public Prosecutions v Armstrong
[2022] VCC 1862
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-00728
Indictment No. M11173456
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL ARMSTRONG |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 25 October 2022 |
DATE OF SENTENCE: | 26 October 2022 |
CASE MAY BE CITED AS: | DPP v Armstrong |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1862 |
REASONS FOR SENTENCE
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Catchwords: Home invasion. Entry at night with imitation handgun and in company. Residential premises. Preplanning. Recovery of debt. 29 years of age as at sentence. Some criminal history; relatively early plea ;
Worboyes v The Queen [2021] VSCA 169 –COVID-19. Parity with
co-accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas (at Plea) Ms E. Fargher (at Sentence) | Office of Public Prosecutions |
For the Accused | Ms A. Patterson (at Plea) Mr M. Senia (at Sentence) | Gallant Law |
HIS HONOUR:
1Paul Armstrong, you have pleaded guilty to one charge of home invasion.
2You are 29 years of age and have admitted a short but relevant
criminal history.
3Home invasion is an inherently serious crime. It is punishable by a 25 year maximum prison term. It is also what is described in the Sentencing Act 1991 as a Category 2 offence, which means that absent the existence of one of the exceptions set out in s5(2H) of that Act, a custodial outcome is mandated and not one in combination with a community corrections order. Your counsel correctly concedes that there are no exceptions which apply in this case. You must be sent to prison. The issue is the length of the sentence and the duration of any non-parole period fixed.
Facts
4The prosecutor, Ms Thomas, opened this case to me yesterday in accordance with an amended written plea summary dated 24 October 2022.
Ms Patterson, who appeared for you, told me that this was an agreed summary and so it was marked as Exhibit A on the plea.
5In those circumstances I see no need to set out the full sentencing facts. I make plain that I will sentence pursuant to that agreed amended summary. That is important. There are statements within the depositional material describing the nature of the association that you had with the people in the house and also the details of the entry on the 3 June. Some of those things were plainly not agreed facts. Though I have read the depositional material, it is not my task to pore my way through the depositions and to find my own factual basis for sentence. What I must do is sentence on the agreed material placed before me. There was, for instance, an earlier version of the summary which of course has now been superseded by that amended version. Some things included in the earlier version have been removed, including reference to the carriage by you of a second weapon, being a machete, and your being fixed with knowledge at the time of entry as to the presence of children within the house. Well, I put those matters aside altogether as they do not form part of the agreed statement. So I sentence in accordance with that agreed amended summary.
6Though it is an agreed factual statement, I still really should say something, albeit briefly, about the facts so that my ultimate sentence can be understood by anyone who happens to access my reasons.
7At the relevant time in mid-2021 Ms Shynae Hinge-Black lived at
42A Campbell Street in Colac with her partner, Cody Murphy, and their
two young children, as well as a man named Christopher Day.
8Ms Hinge-Black owed a debt to a man named Nicholas Richardson. You knew
Richardson. I do not really know how, that has not been the subject of any detailed submission to me. The debt came about in the following way. In around January 2021 she, that is Ms Hinge-Black, had purchased a mobile phone from Richardson. She had paid $400 with an agreement to pay him another $600. It turned out to be a stolen mobile phone which was subsequently locked by Telstra. Accordingly, she had elected not to pay the balance of the money as the phone was of no use to her. The debt owed had nothing to do with you at all and yet you were there with Richardson on a night in late May 2021, attending at the address and actively demanding repayment. The property owner, Mr Day, told you both to leave.
9On 2 June 2021 you and your offsider, Richardson, went back and you spray painted the CCTV cameras at the house in Campbell Street before then actually physically removing them.
10Following on from that activity, Ms Hinge-Black then received some menacing messages and calls from you and Richardson, saying you would run through the house if the money was not paid and that you would smash all the windows. Some other unpleasant things were said such as, 'We are coming for you', as well as, 'You cunts are fucked', and, 'You’re dead'.
11As a result Ms Hinge-Black left $300 in the mailbox and told you that you could collect it, but you continued to contact her, setting a 6 pm, 3 June deadline for the payment of the balance of that money owing. That deadline came and went without any further payment being made.
12Well, you then did as you threatened you would. You went back, late the next night, with Richardson. It was around 10.45 pm and the occupants heard noises outside the premises. Then, ominously, the power was switched off to the house and there was then a kicking at the back door.
13You were at that back door, you were demanding that the door be opened, shouting out, 'Open the door or I’ll shoot my way in!' and 'I’ll put a bullet in ya!' The door was kicked in and you and your offsider then entered this home with a view to assault.
14You were armed with an imitation firearm at the time of entry, and you were brandishing it and pointed the handgun at Ms Hinge-Black, saying 'I will shoot you'.
15Mr Richardson was not armed when he entered but armed himself with a baton once inside. He demanded the return of the phone. You joined in demanding that Ms Hinge-Black pay Richardson the money or give him the phone. There was a scuffle during which Richardson and Ms Hinge-Black went to the floor during which she dropped her mobile phone, and you, amidst all of this, dropped your imitation handgun.
16You and Richardson then soon after decamped to a car that was parked out in nearby Heam Street. Richardson, however, had taken the mobile phone. You are not charged with that theft. He was.
17You shouted back as you left the scene, 'You’re lucky I don’t blow your
head off'.18Police attended and they found a number of items, including the baton and the imitation gun.
19You and Richardson were arrested on 4 June and he made significant admissions. You made a no comment interview, as was your right. You were implicated by DNA evidence and, of course, evidence from the occupants who knew you, as to the identity of the players who had entered the premises.
20You were in custody until being bailed on 17 November of last year. I remanded you back into custody yesterday.
21The agreed summary sets out some of the chronology of the matter before the
Court. The co-accused was dealt with by another Judge on 11 May of this year, and those sentencing remarks are marked as part of Exhibit B. That exhibit also contains the agreed summary in his case, a copy of the relevant indictment as well as his criminal history. He pleaded guilty at an earlier stage. He was younger and had a less serious criminal history. He was not armed upon entry or aware of your imitation firearm. The home invasion in his case related to the joint entry with intent to assault and with persons present. In your case, of course, it is the in-company entry with intent to assault and your possession of that imitation firearm. He was cooperative with the police and had a number of mental health issues that were taken into account on the plea. He was not the person pointing a gun or making the extravagant statements within the house. I will say more about these matters when I deal with the principle of parity of sentence but plainly enough, all things were not equal here.
22So much then for my brief summary of the offending.
23Your counsel told me that you were known by the people in the other household. I asked her what your association was with the people in this other household and it is fair to say that Ms Patterson was really not that keen to descend to any detail of the nature of the association. She did, though, point to instructions that she had received along the same lines as those you had raised in the consultation with Ms Lechner, that there was some other reason for the attendances at this property, that is other than the debt owed to
Richardson, something relating to some troublesome visit paid to your partner’s house by one of the members of this household. Ms Patterson mentioned that there had been an act of arson or some allegation to that end. You had made a no comment interview in this matter, as was your right. She conceded that there was no evidence of any of this in the materials placed before me. Nor was any such event even raised in the course of the attendance on 3 June or, for that matter, the two earlier dates when you did attend. I indicated that I would not act on unsupported instructions such as those or the account that you had given to Ms Lechner in that respect. Ms Patterson did not wish to call any evidence on this topic. Nor, though, will I act on the suggestion that is found within the depositional materials, that there might have been some debt or drugs owed to you by Murphy, and that this factor might have motivated your entry on 3 June. Your counsel, for whatever reason, preferred to leave the nature of the association quite vague and that is her choice. I am sentencing you in accordance with this more detailed agreed amended summary, and that spells out the pivotal aspect of the debt owed to Richardson and the role that this played in this entry, as well as your knowledge of that debt. I do not go beyond those agreed facts.
24This was very serious offending as was readily conceded by Ms Patterson.
Impact
25There are no impact statements in this case. Well, I hardly need an impact statement to know that this was a frightening event. It was designed to be. It was a home invasion at night. There were a number of adults within the house. Because the victims have chosen not to make victim impact statements I am really not able to find any long term impacts present here. Your counsel, however, concedes that there would have been impact and that, as she puts it, it cannot be minimised. See paragraph 26. I take into account the impact of your crime as I am required to.
In Mitigation
26Your counsel, Ms Patterson, relied upon some written plea submissions that were dated 21 October 2022.
27She told me about your personal background, including your educational, relationship, employment and drug history. She also dealt with the period that you had spent at Odyssey House. Your counsel made submissions about the relative seriousness of this instance of home invasion. She made some submissions as to your prospects of rehabilitation. She placed before me a report from a psychologist, Ms Carla Lechner, and she made some submissions as to the relevant sentencing purposes in this case, including the impact of your, 'mental health condition', or, 'impairment', that was disclosed in that report.
28Ms Patterson conducted a comprehensive plea on your behalf yesterday and relied chiefly upon the following matters in mitigation:
·your relatively early guilty plea in the midst of the global pandemic;
·the presence of some remorse;
·the impacts of COVID-19 upon your custodial experience to the point of your release on bail last year and into the future, given that you were returning to custody;
·the applications of the fifth and sixth limbs from the case of Verdins[1];
·the principle of parity of sentence.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
29She conceded that you had a criminal history which was of some relevance to my task and that a term of imprisonment was inevitable here and one of a dimension requiring the fixing of a non-parole period. She addressed what she described as the, 'mandatory sentencing regime', in paragraphs 3 to 5 of her written submissions, and she was quite explicit in submitting that none of the exceptions set out in s5(2H) of the Sentencing Act had any application here. Undoubtedly that submission was correct, so I will say nothing more about these complex legislative provisions.
Prosecution
30The prosecutor, Ms Thomas, made some brief sentencing submissions yesterday challenging the application of the two Verdins limbs relied upon, arguing that there was simply insufficient evidence to enliven either limb or, if she wrong as to that argument, that there was really no basis to give either limb any great weight here. She made some submissions as to the presence of planning in this case. The Director of Public Prosecutions was calling for a head sentence and a non-parole period but so much had already been conceded by your own counsel.
31I will discuss these various submissions shortly.
Background
32I will turn firstly, though, and briefly to your background. There was a good deal of material before me as to your background and there is no point in my just repeating all of this detail because I accept that detail that has been placed before me. It is detailed in Ms Lechner’s report as well as in your counsel’s written submissions and again, there is just no utility in my simply restating it all. Ms Patterson supplemented that material with some oral submissions as well.
33By way only then of brief summary, that is all it is, you were born in May 1993. You are now 29 years of age. You are the youngest of
three children with an older sister and brother. You grew up in Winchelsea before moving to Geelong in Year 7. You had, and still have, a positive relationship with your mother and siblings. It is a less positive relationship with your father, who had issues with alcohol and a physical disability which reduced him to a wheelchair. There is a description of a serious assault upon you by the brother of one of your father’s friends when you were about 10 years of age. See paragraph 9. I see no need to further describe that act. The act and the impact of it is spelt out in the written submissions of Ms Patterson and also in
Ms Lechner’s report. You left home not long after that and wound up living with a family up in Lakes Entrance. You left school before the end of
Year 10. Upon leaving school you worked for five years full time in an abattoir up in Cobram but that of course, was many years ago now.
34In fact you have had a relatively patchy employment record, working, you believe, about 60 per cent of the time since leaving school. It has been more patchy in recent years, coinciding with the escalation in your drug use. You have worked as a concreter and most recently you have been working on an
onion farm.
35You have two children from a relationship with Alicia. You and she separated some five years ago and the children and their mother live in Sydney and there is not much by way of contact. You formed a new relationship in 2020 with
Chelsea Haslem. I am told she is supportive of you. In fact she attended yesterday on the day of the plea, physically coming up from Colac, and she is viewing the sentencing remotely today as well. She lives in Colac with her two teenage sons.
36Drugs have been a major problem for many years for you. See
paragraphs 15 to 23 of the written submissions. I note that you were bailed to reside at Odyssey house in November 2021 but were exited from the program after about a month, not owing to your own indiscretion. Since being exited from Odyssey you continued to use some drugs but at a far lesser rate than previously. You were using Ice regularly at the time of the offending that I am dealing with but Ice has obviously been a major problem for many years. You claim that you have ceased that use of ice, but there is nothing attesting to that. There are no clean urine screens or anything like that.
37You worked in the time that you were being held on remand last year until being bailed.
38You have a short criminal history. As short as it is, it does have some relevance to my task. There are some matters of violence within that history. They relate to a former partner. There is also an instance of trafficking and also the issuing of a threat. Courts have tried to avoid sending you to prison. Courts always do. You have not taken your chances. You have been sent to prison on a couple of occasions in combination with a community corrections order. In fact you have breached a community corrections order and you were on another one at the time of this offence. It did not impede you from offending. Your counsel spoke of the escalation of your offending represented by this offence.
39Now, you do not fall to be sentenced a second time by me for any of that past conduct. You received sentences. You served those sentences. Nor does that past conduct actually aggravate the offence that I am dealing with. What I must do is pass a proportionate sentence. However, I do have to make judgments as to the weight to be given to specific deterrence and community protection. I have to assess your prospects of rehabilitation and also make judgments about your risk of re-offence. Plainly, you must be deterred. This offending involved a serious escalation indeed, as was conceded by Ms Patterson. I must deter you from future offending.
Guilty Plea
40Let me now deal with the other matters raised on your behalf, the first of those being your guilty plea. It was a plea entered at what I will treat as a reasonably early stage in the proceedings, though plainly not the very earliest stage. The plea was not quite as early, for instance, as the co-accused, whose matter settled at an earlier committal mention. Your case in fact settled on the day of the contested committal hearing, but at least that was prior to witnesses actually being called. Your counsel told me that some of the witnesses did actually attend in person. You had received the results of the DNA examination only in the week leading into the committal. So I will treat your plea as a relatively early one here.
41You have taken this early responsibility for your crime.
42As a result, the time, the cost and the effort of a contested committal hearing in the lower court or a trial up in this court has all been avoided. Witnesses have not been required to actually give evidence in court. Giving evidence in court can be a stressful experience. The witnesses, especially the civilian witnesses, have been spared that experience of recounting this frightening episode.
43You have facilitated the course of justice in these various ways and you must be rewarded for doing so. Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[2] In the course of the global pandemic a very large backlog of cases has arisen in this court and, for that matter, the Magistrates' Court. Your case is not part of that backlog. I take these various matters into account in mitigation.
[2]Worboyes v The Queen [2021] VSCA 169
Remorse
44You have pleaded guilty at an early enough stage and a guilty plea is often indicative of some remorse. I will treat it in that manner in this case. I am prepared to find, as your counsel urges me to, that there is some remorse in this case and I take that into account in your favour.
Rehabilitation
45I turn then to your prospects of rehabilitation.
46You were 28 years of age at the time of this serious offence. You have only a short criminal record over the last four years but plainly you have not taken the chances offered to you by the courts. Prison has seemingly not deterred you, nor the various community corrections orders imposed which were obviously designed to foster your rehabilitation and to lead you away from crime and from coming back before the Courts. Two of those orders had conditions requiring you to attend for treatment and testing for drug abuse or dependency. You were on such a community corrections order at the time of this serious offence. You knew that a condition of that order was that you must not commit any offence punishable by a term of imprisonment and yet here you were, engaging in this unmistakably serious crime and behaving like a
second rate gangster.
47You have had long term issues with drugs of dependence. That will always cast something of a shadow over a person’s future rehabilitative prospects. I have little doubt that drugs had a role to play in this offending but that is not a matter in mitigation. I was told that you were affected by drugs on the night, that you had taken ice. I am prepared to accept that you do wish to address that
serious drug issue. Why would you not want to do that? You spent a month at
Odyssey House and even upon being exited, you wished to re-enter that program, hence the two bail addresses specified on the bail document. I do not ignore the time that you have spent in Odyssey House, though it was not being relied upon in an Akoka[3] fashion. Your counsel was quite explicit in that respect.
[3]Akoka v The Queen [2017] VSCA 214
48This was serious offending and it had a degree of planning. However, it is far more serious than any offence you have committed in the past.
49You do have some support from your current partner and your employment record, though it has been patchy over the last few years, is actually suggestive of someone who can actually buckle down and work, and work hard. You have stayed out of strife whilst awaiting the finalisation of this matter. You have also stayed out of strife for many years prior to coming before the courts in 2018.
50I certainly will not write you off but as your counsel correctly submits, I can only be quite guarded as to your future prospects. They will be very much dependent on your ability to abstain from illegal drug use and that has been beyond you for many years. It was even beyond you to remain drug free whilst on bail in the lead into this matter being finalised before this court, and that was the position despite the condition of bail requiring you to remain drug free. So drugs have obviously been massively problematic in your life. You must buckle down and you must make a determined effort to leave illegal drugs behind you. If not now, well, when will you do it? Your life is just passing you by. I hope that you can leave drugs behind you. It is not too late. If you do not, your prospects into the future will be quite bleak indeed. I believe, though, that there are some realistic prospects of rehabilitation in this case. I cannot put it much higher than that at this point. I can, as your counsel submits, really only be quite guarded.
COVID-19
51I turn to the issue of COVID-19 and its impact upon you as a prisoner. I have no difficulty at all in accepting that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners. You were in custody from June of last year until being bailed in November. No doubt there would have been some worries about catching the virus in such a setting and no doubt you would have experienced the increased burden posed by quarantine and/or lockdown on occasions. Also, of course, the absence of
in-person visits and the absence of the full range of courses and programs being offered in that period.
52Things have looked up in prison since about March of this year and you are now back in prison following my remand of you yesterday.
53What lies ahead in the future on the COVID front for prisoners is really impossible for the court to determine. Your counsel accepts that that is so. I am not free to guess about that. Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a
case-by-case basis. They would have the power to address any increased burden in your case by way of conferring emergency management days in relation to the sentence I am about to impose. I cannot know if that will take place or not and I make it clear that I do not proceed on the assumption that it will. To take that into account in that way would be to contemplate future executive action, which is prohibited to me.
54It is though, not unreasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming several months. There are still some lockdowns and the day-to-day uncertainty that they cause as to how prisoners will fare will persist, and no doubt you are also back into a quarantine arrangement for a handful of days at this point. So it still has an impact upon prisoners.
55I take into account the increased burden imposed by the response to
COVID-19 in the manners that I have described. So that which has arisen in the past prior to being bailed and that which lies ahead in the sentence which stretches out ahead of you.
Verdins
56Your counsel argued that two limbs from the well-known case of Verdins are enlivened here. She relied upon the report of Ms Lechner in that regard.
Ms Patterson was not suggesting that these Verdins submissions were weighty matters on the plea at all. Far from it. I see no need to descend chapter and verse into the report of Ms Lechner. I have already said that the report is a useful repository of material as to your personal background. The ‘impairments’ relied upon are the depression and the post-traumatic stress disorder. The extent of any diagnosis is really not that clear. Nor the currency of any diagnosis if one has been made, or the extent of future impact upon you in a prison setting. The Kessler Distress Scale and the Beck Depression Inventory canvas symptoms for a period of either two (Beck) of four (Kessler) weeks preceding the testing. They are based on self-report. You were seen by Ms Lechner in July of this year and then again in September. Those results on those tests tell me very little, if anything, about your present position or, for that matter, the position which might lie ahead. On occasion in the report Ms Lechner speaks of symptoms, not of any actual diagnosis. On other occasions, though, she speaks of your fulfilling the criteria for a diagnosis, for instance, of major depressive disorder (see p3, paragraph 4). I am prepared to accept that you have symptoms of complex post-traumatic stress disorder. There was some discussion on the plea yesterday as to whether there was a formal diagnosis or not. The Crown challenged the application of either of these limbs from the case of Verdins and argued that there was simply no sufficient evidentiary basis to be satisfied on the balance of probabilities of the application of either of those limbs.
57In fact, upon rereading the report overnight, and I have reread all the material overnight, I should make that plain to you, I am prepared to construe
paragraph 1 in the opinion section as containing an opinion that you presented with complex post-traumatic stress disorder and a major depressive disorder and not just symptoms of each. In any event, these Verdins principles are really not dependent upon a formal diagnostic label. They are more concerned with impacts upon functioning at the relevant time.
58What impacts will these things have upon your custodial predicament? There is only very sparse coverage of this point in the expert report.
59Your counsel directed the Court to paragraph 5 in the opinion section, which says, 'That a return to jail is likely to have a detrimental impact on his
mental health with symptoms of PTSD likely to resurface in a confined all male environment'. That is the extent of it. It is that paragraph which is said to enliven the fifth and sixth limbs of Verdins. It does not. Ultimately, I will give thefifth limb only some very modest weight. As to the sixth limb, there is no evidentiary basis to find, and hence I am not satisfied on the balance of probabilities, that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. So I am prepared to make some allowance for some increased prison burden (that is limb 5). The
sixth limb is not engaged at all in this case.
Parity
60I turn to the issue of parity of sentence. As a general proposition, and this is something of a gross simplification, like offenders ought receive the same or at least similar sentences. It is designed in large part to avoid a justified sense of grievance existing between co-offenders. When two or more co-offenders are sentenced, any significant difference in the sentences imposed upon them should be capable of a rational explanation. It follows then that the court must assess the individuals and the circumstances. Their ages, backgrounds, criminal history, health, character, rehabilitative prospects and roles played in the offending are some, not all, of the relevant matters and may justify disparate sentences. A comparative analysis of the culpability and the circumstances of
co-offenders is indispensable. It is at the heart of the correct application of the principle of parity of sentence.
61To that end, understandably, the strong preference is for all co-offenders to be sentenced by the same Judge at the same time. When that is not possible and it is not here, the Judge in my position, that is the Judge imposing the later sentence, should strive to inform themselves of the sentence already imposed and the circumstances. I have done that as best I can.
62I have the sentencing remarks of Judge Smith. I have the indictment that Richardson faced relating to this particular entry. I have the summary and his criminal history. Judge Smith did not sentence Richardson as the architect of this visit. That finding does not in any way bind me of course. I have to reach my own views about that sort of thing.
63Having read the materials, Mr Richardson was fortunate indeed to have a three year prison term imposed on the home invasion, but there were a range of matters in mitigation placed before the court in his case. The Crown conceded in his case that he was not aware of the existence of the imitation handgun which you carried. He was not armed prior to entry. The home invasion charge in his case reflects that fact with, 'persons present', the matter particularised. He was younger, 23 years of age at the time. He had only a single court appearance but of course he was also before the Court for an earlier armed robbery and attempted deception and he was on bail at the time as well, as I understand it. He had not previously been imprisoned. He was not pointing the gun within the house or engaged in the extravagant language which you employed. He was co-operative with the police and he made quite detailed admissions and he pleaded guilty at a slightly earlier stage at a committal mention. As can be seen from Judge Smith’s sentencing remarks, there was a large amount of character reference material placed before the Court in his case, which no doubt left open a more favourable assessment as to his future prospects. Judge Smith in fact thought those prospects were relatively good in
Richardson's case. Richardson had been suicidal after his arrest and he had self-harmed repeatedly whilst in custody and he had also been the subject of two prison assaults. Three limbs from the case of Verdins had application in his case as a result of some expert material placed before the court. That is the first, the fifth and the sixth limbs from Verdins. He therefore had some reduced culpability as well. You do not.
64As to who was the architect, it is very hard, as far as I am concerned, to separate the two of you. The debt was owed to Richardson but you were taking a very great interest in the recovery from all that I see in the materials, attending on these three occasions, texting and messaging and setting deadlines and then doing what you did on the night. Your role on the night in question was more serious than his, and that was conceded by your own counsel.
65When looking at matters personal to each of you, virtually everything flows in
Mr Richardson’s favour. So all things are decidedly not equal here. You must do worse than him by way of sentence. That was conceded by your counsel. I have what I regard as a lenient sentence imposed upon Richardson for the home invasion. I am not free to just ignore that sentence. However, that leniency was to a large part explained by the many matters in mitigation in his case and his more limited role in the offending and the less serious form of particularisation of the home invasion in his case. That is to say, the absence of any weapon. There are a host of differences in the offending and in your respective personal matters.
66I am explaining these things in some detail to you so that you will understand why you must fare a good deal worse than Mr Richardson by way of sentence, and so that you will not have any justified sense of grievance. Disparity between your sentences is entirely justified. In fact it is required, and your counsel accepts that is so. Indeed, if there was no disparity, Mr Richardson would no doubt feel a sense of grievance himself.
67I should tell you that the sentence that I will soon impose is less than would have been imposed by me absent the restraining influence posed by the application of the principles of parity of sentence in this case. In a way, you are the beneficiary of Mr Richardson’s good fortune but, of course, you must do worse than him.
General
68Let me turn then to some general matters. I am required to take into account a large range of matters. They include the maximum penalty and the nature and the gravity as well as the impact of your crime. The manner of assessing the seriousness of a home invasion is well established, see the case of O’Brien[4].
That case draws on those cases dealing with the assessment of the seriousness of confrontational aggravated burglaries. So cases such as
Hogarth[5], Meyers[6] and Bowden[7].
[4]Director of Public Prosecutions v Shane O'Brien [2019] VSCA 254; 280 A Crim R 1
[5]Hogarth v The Queen [2012] VSCA 302; 37 VR 658
[6]DPP v Meyers [2014] VSCA 314; 44 VR 486
[7]DPP v Bowden [2016] VSCA 283
69This was an unmistakably serious offence There was a decent level of premeditation. A debt was owed and you set out with Richardson to recover the debt. The first visit bore no fruit. The security cameras were spray painted and then removed in a separate visit the day before and then a run through was threatened. You then followed through on that threat, kicking in a door, literally, as the photographs disclose and entering in company at a time of the night when you knew people were home. Entering not just at night but into a house which had been plunged into darkness with the power being turned off to that home. You carried an imitation firearm which you pointed and made demands with. Serious stuff indeed. This is no minor example of this offence by any stretch of the imagination. It was a serious, confrontational entry.
70You were on a community corrections order at the time of this offence. This offence is punishable by a 25-year maximum prison term, and whilst this home invasion does not sit at the very top of the range of offence seriousness, it is a long way removed from the least serious examples of the offence. Your counsel submitted that it was a serious example of the offence. She is right. It is. That is a serious example of an inherently serious offence punishable by a 25 year maximum prison term.
Purposes
71I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation.
72I am required to punish you for your crime. I must do that justly and proportionately. That is obviously an important purpose.
73I must also denounce your conduct, and that is also an important purpose of sentencing for this sort of offence. It is a serious crime to invade another person’s home in the way that you did. I must, and I do, denounce your conduct.
74I must also pay weight to specific deterrence. By that I mean the need to deter or to dissuade you from offending in the future. That is of significance here given the serious nature of the offence and the escalation of offending that it does represents.
75General deterrence is also an important purpose of sentencing in this case, and by that I mean the need to send a message to future potential offenders. This court must send a loud message to others in the community who might consider committing this serious style of offence. Home invasion is an inherently serious crime and would be offenders must understand that it will be met with a significant prison sentences.
76I must also pay regard to community protection. That is obviously of some importance in this case as well.
77I must have regard, as I have said, to the maximum penalty and the impact of your crime.
78I must also pay regard to current sentencing practices. That is not a single controlling factor. There is no sentencing snapshot held by the
Sentencing Advisory Council for this offence, though there is one for aggravated burglary. See the Sentencing Advisory Council Snapshot No. 262 of
December 2021. Home invasion is, however, a different offence. By its nature, it is, 'in company', or, 'joint', offending. Not every aggravated burglary is.
79I have looked at the online sentencing statistics for the offence of home invasion as well as the overview of cases held at the Judicial College of Victoria
Sentencing Manual at 6.14.
80Sentencing is not, however, a statistical or mathematical task.
81Statistics have inherent limitations. They omit all of the detail of the matters both in aggravation and in mitigation, the things which would actually explain a particular sentencing outcome. Statistics tell me next to nothing about the offence, or the offender, represented in the data.
82I am exercising a sentencing discretion in your case, taking into account the known matters in aggravation and mitigation in your case. So statistics do not drive my task, nor do other sentences imposed on other offenders for other crimes. No amount of looking at statistics or at other sentences passed in other cases will ever provide the answer to my task. Other cases are not precedents and there is no such thing as one correct sentence in any event.
83Prison is always a disposition of last resort.
84It was conceded here that a prison term with a non-parole period was the only option here. Plainly, that concession was correct.
85I must ensure that the sentence imposed is commensurate with the gravity of the offence. It must be a proportionate sentence and I do not wish to snuff out any hope that you might have but, regrettably, you have chosen to commit a serious crime indeed. A sizeable prison term is simply unavoidable here. This sentence, however, should not be cited back to other judges as the sort of sentence commonly available for an example of home invasion as serious as this one is. As I have said when dealing with the aspect of parity of sentence, rightly or wrongly, I feel there is an aspect of restraint imposed upon me by the consideration of the principles of parity and that other sentence which has been imposed. But for that consideration, I can tell you, I would undoubtedly have imposed a larger prison term upon you than the one that I will soon pronounce.
Forfeiture Section 151 and Section 33
86There are some ancillary orders in this case.
87Neither of these orders are in any way opposed. First, there is an application under s33 of the Confiscations Act for forfeiture of the various items found at the scene, the items listed in the schedule. I am satisfied the relevant criteria under s33 of the Confiscations Act is made out and I order the forfeiture of that material in the schedule to the relevant Minister.
88Secondly, there is an application under s151 of the Firearms Act for forfeiture of the imitation weapon. I am satisfied that the relevant criteria is made out here, and pursuant to s151 of the Firearms Act the imitation firearm is likewise forfeited to the relevant Minister
89All right I will have you stand up now, please. I am sorry to have taken so long to get to this point, Mr Armstrong.
Sentence
90On the single charge of home invasion, Charge 1 on the indictment, I convict and sentence you to four years' imprisonment. That is the only sentence and that is hence the total effective sentence.
Non-Parole Period
91I am required to fix a non‑parole period. I am not allowed to speculate as to whether or not you will be released on parole. That matter will rest entirely in the hands of the Adult Parole Board. I have no role in that decision.
92I fix a period of two and a half years during which you will not be eligible for release on parole.
Pre-Sentence Detention
93You have served a total of 167 days by way of pre-sentence detention and that declaration is entered into the records of the court.
6AAA
94I have told you that I have taken into account your guilty plea. I have. If you had pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for six years. I would have fixed a non-parole period of four and a half years, and that declaration made pursuant to s6AAA of the
Sentencing Act is also to be entered into the records of the court.
95Grab a seat then for a moment. I will just see if there are any other matters. Ms Fargher, any other matters from your perspective?
96MS FARGHER: No, Your Honour.
97HIS HONOUR: Mr Senia?
98MR SENIA: No, Your Honour.
99HIS HONOUR: All right. You will go and see your client today and have a discussion?
100MR SENIA: Yes, Your Honour.
101HIS HONOUR: As to my reasons, I will revise them in due course. I generally revise them within a day of getting them but sometimes it takes a bit of time to get them. That completes the matter then. So, Mr Armstrong,
Mr Senia will come out and see you and have a chat about what has occurred here today and your rights in relation to this sentence. So let me just see. Is there any need for me to make any sort of custody management direction at all? I did not do it yesterday but is there any custody management directions that I am required to make or not?
102MR SENIA: No, I do not believe so, Your Honour.
103HIS HONOUR: All right. That completes the matter then. So if Mr Armstrong can now be removed, please. Thank you.
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