Director of Public Prosecutions v Baker
[2022] VCC 2359
•17 June 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01439
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAFIYYAH BAKER |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 February and 17 June 2022 | |
DATE OF SENTENCE: | 17 June 2022 | |
CASE MAY BE CITED AS: | DPP v Baker | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2359 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of aggravated burglary and one charge of common law assault (a rolled-up charge) – 18-year-old offender in company with unknown offender – No prior criminal history – early plea of guilty with utilitarian value but court not satisfied as to remorse – unhappy childhood with lack of nurturing and security – need for some mental health treatment in relation to generalised anxiety – since date of offending, offender had developed a secure relationship and had given birth to a young child and developed some stability and supports from partner, partner’s mother and her own half-sister – Community Correction Order of 3 years’ duration with conditions of unpaid community work, treatment and rehabilitation (mental health and drug abuse) supervision, offending programs including anger management and other vocational programs
Legislation Cited:
Cases Cited:
Sentence: Convicted and placed on a Community Correction Order for a period of 3 years, with conditions to complete drug counselling and treatment (including testing), mental health treatment, 100 hours of unpaid community work and to remain under the supervision of the Office of Corrections.
s.6AAA: 2 years and 6 months’ detention in a Youth Justice Centre.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Zammit | Solicitor for Public Prosecutions |
| For the Offender | Ms M Walker | Melinda Walker Solicitor |
HER HONOUR:
1Safiyyah Baker, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to one charge of common law assault, which carries a maximum penalty of 5 years’ imprisonment.
2The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”).
3On 8 April 2020, you and another unknown female went to an upstairs bungalow at the rear of a home in Roxburgh Park. This was the home of Ms Ticconi. It was after 11pm at night, and you and/or your companion kicked open the door to the bungalow and came running up the stairs. Mr Zucca, who was at the bungalow, came out to the top of the stairs after hearing a loud bang and you yelled at him, asking “Where is she? Let me at her”, referring to Ms Ticconi, who was hiding in the bathroom. This is the basis of Charge 1, aggravated burglary with intent to assault a person present.
4Mr Zucca tried to block you and your companion at the top of the stairs, and told you that you were not to come any further. You scratched and pushed at him, and kicked him in the groin, causing pain. As he tried to push you back towards the stairs, you grabbed him by the throat with your right hand and began squeezing. Mr Zucca managed to push you off, and told you and your companion to “fuck off” and that you had to fix the door. You responded “fuck you, you don’t know who I know”, and you and your co‑offender left the scene at approximately 11.10pm. The multiple acts of assault by you of Mr Zucca, to which I have just referred, are the basis of Charge 2, common law assault, which is a rolled-up charge.
5Police were notified and attended the bungalow. Three days later, on 11 April 2020, in response to a call from police, you attended Broadmeadows Police Station for an interview. You denied any involvement in the offending, and claimed to have last been at Ms Ticconi’s house in January, and also told police that Ms Ticconi was your “ex‑best friend” and Mr Zucca was your “ex‑partner”. When asked by police what you had been doing on the night of the offending, you lied. You told police “I’m pretty sure I was at home. Honestly, because with all this coronavirus you can’t be out anyway”.
6Police subsequently obtained call charge records which revealed that you had placed two calls to Mr Zucca shortly after you had left the premises on the night of the offending.
7You are presently aged 20 years, having been born in August 2001. You come before the court with no prior criminal history.
8In a plea on your behalf by Ms Walker, the court was told that you had committed this offending because, when you discovered that Mr Zucca and Ms Ticconi were in a relationship, you felt that you had been “used”. Ms Walker stated that they had each somehow independently befriended you, and you felt they had not been honest with you by not revealing to you that they were in a relationship. In the circumstances, you felt they had “used” you to obtain illicit drugs for their own use.
9Ms Walker urged the court to note that you were aged only 18 years at the time of this offending, and had an unblemished record. She noted that you had a difficult background. You had been physically abused by both parents and been exposed to violence perpetrated by your parents upon others, and allegedly been sexually abused as a child as well. Your mother battled mental-health issues, and ultimately committed suicide in 2015, when you were aged 14 years.
10Ms Walker noted that you had suffered learning difficulties at school, and had left school after completing Year 10 at the age of 15 years. You then worked for a couple of years at Coles supermarket until December 2020.
11For some time over 2019 and until January 2020 you were using cocaine and then cannabis, but you ceased all drug use when you discovered that you were pregnant. You gave birth to a daughter to your current partner in June 2021. This was some 14 months after the offending, and Ms Walker stated that, since that time, you had remained free of illicit drug use and devoted yourself to being a good mother. She submitted that your prospects of rehabilitation were good.
12Tendered at the plea hearing on 7 February 2022 was a report of a psychological assessment conducted on 18 December 2021 and 19 January 2022 by Ms Miriam Latif, psychologist. The report, which was dated 22 January 2022, was tendered as Exhibit “1”.
13Ms Latif noted that you had been reared by a single mother with a largely absent father, but had been to live with your grandmother from age three until age seven, where you were taken good care of. You were allegedly neglected by both parents and had been beaten by them, and told her that you had been sexually abused, on one occasion, by an uncle and, on another occasion, by a neighbour.
14Ms Latif noted that your mother had ongoing mental-health issues, apparently in part related to sexual harassment in her workplace and a protracted WorkCover claim. Your mother had self-harmed on a number of occasions, as well as attempting to commit suicide, which she ultimately did in 2015. You apparently received a significant WorkCover compensation payout following your mother’s death. You told Ms Latif that you had entrusted it to an aunt, who somehow defrauded you of it. You are apparently engaged in legal proceedings against that aunt for stealing some $200,000 from you (documents relating to those proceedings were tendered as Exhibit “2”).
15Ms Latif noted that you had met your current partner, Josh, when you were thirteen, but had not commenced dating until 2019, and you reported that this is a supportive and healthy relationship. He is the father of your daughter, and he works hard to support the family.
16Ms Latif noted that you had been diagnosed with post-natal depression by your general practitioner three weeks prior to Ms Latif assessing you, and had been prescribed Valium to help with anxiety and sleep.
17You told Ms Latif that you had first used illicit substances in 2019 after you befriended Mr Zucca, who seemed to have convinced you that the two of you were in some type of relationship. It was through him that you met Ms Ticconi, but you felt that Mr Zucca had been lying to you about his relationship with Ms Ticconi. You had used some of the WorkCover settlement money to buy drugs for both of them, and felt that you had been used. You stated, in effect, that you went to the Roxborough Park bungalow because you just wanted to see that they were together. You went on to tell Ms Latif, I “wanted to hurt myself more than anything. I was more angry at myself than anyone else.” You stated that you had not used any substances on the day of the offending.
18Ms Latif assessed you as suffering moderate levels of depression, extremely severe levels of anxiety, and mild levels of stress. She also considered that you suffered Post-Traumatic Stress Disorder relating to “suffering significant trauma during childhood and along with [your] mother’s suicide in 2015.” She also considered that you most likely fall within the DSM‑5 criteria for adult ADHD. Further, you had symptoms consistent with a Major Depressive Disorder, which is episodic in nature, and had presented recently as a result of unresolved grief issues, feeling isolated, and feeling overwhelmed with your infant child at times.
19Ms Latif did not consider that your drug use between 2019 and 2020 was significant enough to fulfil the criteria for a Substance-Use Disorder. She did not consider that you met the full criteria for Post-Natal Depression. She considered that your “offending occurred in the context of untreated PTSD, depression, and social isolation.” You felt that you had established a relationship with Mr Zucca and he was someone in whom you could confide, and you felt significantly betrayed when you found out about his relationship with Ms Ticconi. She noted that you had struggled to trust people generally, and your anger and frustration “led to impulsive conduct that was likely more difficult to control as a result of untreated ADHD symptoms and PTSD”.
20She noted that, although you were not under the influence of substances at the time of the offending, you “did not exercise consequential thinking, leading [you] to engage in reckless, poorly considered conduct”. She claimed that you had shown insight into the nature of your mental-health problems, expressed regret and remorse for your behaviour, and found the charges against you stressful.
21She thought that, although you did not have a substance abuse disorder, your use of cocaine and cannabis for a 12‑month period “was likely related to poor coping mechanisms and an avoidant coping style”. She noted that you had little contact with family members, and very limited social support with the exception of your current partner, and that you had not received any mental-health treatment, except for having diazepam prescribed by a GP recently for sleep and anxiety.
22Ms Latif recommended that you engage in mental-health treatment with a psychologist for your depression and anxiety and Post-Traumatic Stress Disorder, as well as psychiatric assessment with a view to obtaining psychotropic medication for your depression, Post-Traumatic Stress Disorder and ADHD. She considered that your stable accommodation, stable employment, remorse, insight into your mental health, having become a mother, and being in a stable relationship, meant that your risk of reoffending was low.
23At the time of the plea hearing on 7 February 2022, I expressed my reservations concerning the opinion of Ms Latif in a number of respects. On one level she described your conduct as impulsive, but on another it is plain that you had somehow found out about the fact that Mr Zucca had a relationship with Ms Ticconi and deliberately had gone to remonstrate with them out of a sense of grievance. I found it difficult to understand why you would have thought you were in a relationship with Mr Zucca, given that you apparently told Ms Latif (and also your own counsel[1]) that you have been in a relationship with your current partner since 2019, that is, preceding the offence. When I raised this with your counsel, Ms Walker, she stated that you maintained you had not commenced the relationship with your partner until May 2020. Subsequently, a reference from your partner, Joshua Tognolini,[2] confirmed that the relationship had commenced in May 2020. Nevertheless, in your reasons for offending given to Ms Latif and embodied in submissions from Ms Walker, there appears to be an element of blaming the victims for your own appalling behaviour. To my mind, that does not sit well with the submission made on your behalf that you are remorseful.
[1]See page 2 of Brief Outline of Submissions “MFI-1”, filed on behalf of offender by Melinda Walker prior to plea hearing on 7 February 2022
[2]Part of Exhibit “4”
24Ms Latif seemed to accept at face value, without close analysis, your self-report. Her report did not make it clear as to what, in particular, your Post-Traumatic Stress Disorder symptoms related. It did not explain the content of your intrusive symptoms or the basis for your avoidance behaviour. Nor did she elucidate the basis for her conclusion that you satisfy the criteria for adult ADHD, other than in very general terms. Further, given that she considered that your offending occurred in the context of untreated Post-Traumatic Stress Disorder, depression, and social isolation, and that, to date, none of those factors have been addressed and, according to Ms Latif, need to be addressed, I was puzzled as to how she arrived at her conclusion that, now, you are at low risk of reoffending.
25In the circumstances, I determined that it would be appropriate to have you assessed by a psychiatrist at Forensicare. In response to the court’s request, an assessment was undertaken with you on 9 May 2022, and a report dated 7 June 2022 authored by Dr David Trainor, consultant psychiatrist, was tendered as Exhibit “E”.
26Dr Trainor took a history that you had “always been anxious” and had experienced panic attacks, usually in response to receiving an email from court, and that such attacks had been more frequent in the previous six months relating to legal matters. He noted that you “reported no symptoms of Post-Traumatic Stress Disorder, such as nightmares, hypervigilance or flashbacks, or symptoms consistent with obsessive-compulsive disorder or psychosis.” He also noted that you were financially struggling and had moved to Wallan in November 2021 and were more socially isolated there, particularly after having lost your licence, and that you worried about going to prison and what may happen to your child.
27You told Dr Trainor that, following the offending and the birth of your child, your life has “completely changed” and that your daughter is your priority, that you have no interest in using drugs, and that you see a future which involves further studying and returning to work. He also noted that, three days prior to seeing him, namely on 6 May 2022, you had been prescribed the anti-depressant Zoloft, 50 milligrams, by your general practitioner.
28After taking a detailed history of your upbringing, Dr Trainor expressed the following views:
“51.By her own account Ms Baker’s childhood was disrupted by insecure parental attachments, neglect, and physical, emotional, and sexual trauma. Furthermore, in adolescence, she experienced the death of her mother, as well as an abusive and traumatic first romantic relationship. These experiences likely resulted in an insecure sense of self, difficulty with successfully regulating her emotional state, a propensity for anxiety, difficulty interpreting and judging the intentions of others, as well as potentially negatively influencing future relationship choices, increasing her vulnerability. It is difficult to fully comment on her personality however, without reliable collateral information regarding her early development, coping styles and relationships.
52. Despite these experiences, Ms Baker has mostly stayed psychiatrically well and has never come into contact with secondary mental health services. She experienced anxiety and mood instability in the peripartum period, which she relates to an understandable fear of seeing the victims of the offending, who lived locally. She has an anxious temperament, and at interview had some symptoms of anxiety, which have been exacerbated by legal stressors, motherhood, financial stressors, and isolation from supports, but she was subthreshold for an anxiety disorder, and didn’t present with a mood or psychotic illness. There is no evidence to support a diagnosis of PTSD. Her symptoms of inattention and hyperactivity, which date back to childhood, may suggest ADHD, but this requires formalised testing. Furthermore, there were features suggestive of possible Autism Spectrum Disorder and a possible learning disorder, but this additionally requires formalised testing.”[3]
[3]Page 5 of Exhibit “B”
29Dr Trainor did not find any evidence to suggest that you were under the influence of an acute major mental illness at the time of offending. He saw the offending in the context that you became emotionally wounded, with your childhood history impairing your capacity to self-soothe and increasing your sensitivity to rejection. He considered that a term of imprisonment would weigh more heavily upon you because of your anxious temperament, your dependence on your partner, and your fear of leaving your baby, than upon a person without these issues. He suggested that your mental health should be monitored and managed by your GP, who could refer you for further assessment if you wished to pursue individual psychological therapy. In the event of a custodial sentence, he considered that prison mental health services should assess and monitor your mental health.
30Ms Baker, you should be in no doubt that the offence of aggravated burglary is a very serious one, as is evident from the maximum penalty of 25 years which applies to it. The photographs tendered as Exhibits “B” and “C” show the violence with which you entered the home of your victims. Exhibit “C” shows the footprint on the door into which you forced your way and Exhibit “B” shows the damage done to the locking mechanism of the door. You were obviously in an enraged mood and it must have been terrifying for both of your victims as you ran up the stairs yelling “Where is she? Let me at her”, referring to Ms Ticconi. You attacked Mr Zucca in a vicious way and the photographs tendered as Exhibit “D” show red marks around his neck where you squeezed his neck with your hand after your most unwelcome intrusion into Ms Ticconi’s home. Every citizen has the entitlement to feel safe in a private home or in the home of another, and you have violated that safety in a very menacing way. Although the offending behaviour took place over a relatively short time, you certainly used that time to attack Mr Zucca in multiple ways. Courts must send a message to others who might be minded to act in a seriously antisocial way, as you did, that people who take the law into their own hands in this violent way, will be appropriately punished. The court must make its disapproval of your conduct very plain by denouncing it and emphasise what is called general deterrence, that is telling other members of the community that this sort of conduct will not be tolerated.
31At the plea hearing on 17 June 2022, various references were tendered on your behalf.[4] One is from your half-sister, Samantha Collett, who is aged 31 years. She confirmed that your father was violent towards your mother and left the family home when you were quite young, only to return some time later and demand access rights, which he then declined often to take up. She also confirmed the fragile mental health of your mother, which had necessitated you going to live with your grandmother from approximately age four to 14 years, and the fact that you returned only briefly to live with your mother for about four months before your mother suicided. She stated that you then returned to live with your grandmother and that you had barely got to know your mother and had grown up feeling unwanted by her. She stated that you grew up without any real input from either of your parents and that you struggled with schooling and were bullied and she saw you become lost, despondent and lonely. She stated that this caused you to act out in various ways and you became a drug user and got in with a bad crowd and your grandmother ultimately asked you to leave her home when you were 17 years old. She and you did not speak very much for the next couple of years and it was only recently that she learned of your suffering and drug use. She stated that you had never been taught how to cope as an adult and, since forming the relationship with your partner, Joshua, and having a baby together, she had seen “a massage change and shift” in you and you have matured a lot in the last 12 to 18 months. She described you as a loving and caring mother who has learned many basic skills that others would take for granted because they have had someone to show them. She said that you now feel that you want to get an education and a career such as a dental hygienist or traffic manager and urged the court to allow you to continue to have assistance for your mental health problems.
[4]Exhibit “4”
32Also tendered on your behalf was a reference from your partner, Joshua Tognolini. He is 22 years of age and has operated his own sandblasting and painting business full time since returning from New Zealand in early to mid-2020. He describes you as having had no support network when the two of you got together in May 2020 but, now, you have become a wonderful mother and moved from a life with no structure to eating well and running the household and caring for your much-loved child. He stated that, since you have had a stable home, a stable income and stable family life, you feel loved and important and it has brought out the best in you. His mother, Mrs Pauline Gleeson, in another reference stated very similar things and assured the court of her support for you. She stated “I have watched Safiyya grow. She has gone from being a confused mentally malnourished teenage girl just getting through life with no direction to being a full time mother and making me as a mother proud to see someone strive doing it.”
33I must say that the references from your partner, his mother and your sister are all impressive and do show that you have made changes to your life since the birth of your daughter on 6 June 2021, for which you are to be given credit. However, I consider that you have a long way to go in working upon your emotional stability. In that regard, I note that it was only very recently that you attended your general practitioner for mood stabilising medication.
34In sentencing you I take into account that you were only 18 years of age at the time of this offending. There are a number of very unhappy aspects to your childhood, however, you did have the stability of a home with your grandmother from age four to 14 years and, again, from later in your fourteenth year to when you were 17 years of age. In this regard, Ms Latif’s history that you were “constantly moved between carers throughout [your] childhood”[5] is not correct. Although I do not consider that the material as to your background is of a magnitude to enliven the principles in The Queen v Bugmy,[6] it is still an important part of your personal circumstances to be taken into account in the sentencing process. To lack the provision of nurture and security from both parents and to barely have known a mentally unwell mother, who suicided when you were aged 14 years, undoubtedly would leave you feeling vulnerable.
[5]Paragraph 92, page 11 of Exhibit “1”
[6](2013) 249 CLR 571
35Although Dr Trainor’s view, which I accept, is that you do not have any major mental illness, I acknowledge that your childhood experiences left you feeling insecure and generally anxious. I do take these factors into account, along with your young age at the time of the offending and acknowledge that this is a situation where rehabilitation should be placed at the forefront of the sentencing process.
36Although I am not satisfied on the balance of probabilities of the diagnoses of Post-traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder or Major Depressive Disorder in Ms Latif’s report and I accept Dr Trainor’s view, I take into account your immaturity and lack of support, insecurity, difficulty regulating your emotions and general vulnerability. I also note that Dr Trainor opines that you do have a propensity for anxiety and are genetically predisposed to developing a major mental illness, as both of your parents were diagnosed with mental disorders. For this reason, I consider it is desirable that you have some mental health counselling to help deal with some of the traumas of your childhood, develop insight into your own psychological state, and enable you to maintain good mental health in order to build on being a good mother to your child and to continue the gains that you have made since this offending.
37In sentencing you, I also take into account that you pleaded guilty at an early stage, noting that apparently some of the delay in the past was occasioned by this matter having been placed for a time in the summary list of cases in the Magistrates’ Court. Your plea of guilty was indicated at the committal case conference on 1 July 2021 when it was still very difficult to run criminal trials in this court because of the pandemic restrictions. Accordingly, I consider that your plea of guilty should attract utilitarian weight in accordance with the principles set out in Worboyes v R.[7] Thus, although I am not convinced of your remorse, it is appropriate to discount your sentence in an added and meaningful way because of the pleas of guilty having been indicated in these circumstances.
[7][2021] VSCA 169
38Your counsel has sought a “without conviction” disposition and the prosecution has indicated that such a disposition is open to the Court. Having taken into account all the circumstances of the case, and the matters which much be taken into account pursuant to s8 of the Sentencing Act, I consider that the gravity of the offence of aggravated burglary is such that such a disposition would be an unduly lenient and inappropriate one. Whilst there should be a significant focus upon rehabilitation because of your young age and prior good record, denunciation and general deterrence still have an important part to play in sentencing for this serious and unhappily prevalent offence. However, on the basis that your personal circumstances have changed in terms of a secure relationship, a focus on motherhood and the support of both your partner and his mother and your half-sister, I consider that notwithstanding the gravity of the offending, particularly on Charge 1, it is appropriate to sentence you to undertake a Community Correction Order, bearing in mind that both charges were committed at the same time within a relatively short space of time.
39You have been assessed as suitable for such an order in an assessment conducted today and embodied in a report authored by Hala Choucair from the Office of Corrections, which I have marked as Exhibit “F”.
40On Charge 1, aggravated burglary, and Charge 2, common law assault, you are convicted and sentenced to an aggregate sentence of undertaking a Community Correction Order for a period of 3 years.
41The terms of the order are as follows:
(a) That you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment;
(ab) You must comply with any obligation or requirement prescribed by the regulations;
(b) You must report to and receive visits from the Secretary during the period of the order;
(c) You must report to the Community Corrections Centre specified in the order within 2 clear working days after the order coming into force;
(d) You must notify the Secretary of any change of address or employment within 2 clear working days after the change;
(e) You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary;
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
42In addition, the following conditions are attached to the order:
(1) That you undertake 100 hours of unpaid community work;
(2) That you undergo mental health assessment and treatment as directed;
(3) That you undergo assessment and treatment (including testing) for drug abuse or dependency;
(4) That you undergo any program that addresses factors related to your offending behaviour, including an anger management program;
(5) That you undergo any other treatment and rehabilitation including employment, educational, cultural and personal development programs to assist your rehabilitation.
(6) That you be supervised, monitored and managed as directed by the Secretary.
43Pursuant to s48CA(2) of the Sentencing Act, I determine that all of the hours undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purpose of the unpaid community work condition.
44I am not able to make such an order, Ms Baker, unless you agree to it. Do you agree to undertake a Community Correction Order with the terms and conditions which I have just read out?
45OFFENDER: Yes, I do, your Honour.
46You must realise that, in the event that you do not comply with the terms and conditions of the order or commit further offences which breach the order, then you will be charged with contravening the order which, in itself, is a criminal offence punishable by a maximum penalty of 3 months’ imprisonment. Should that occur, it is likely that you will be brought before the court for contravention and it may be that the order will be cancelled and you will be ordered to serve a term of imprisonment instead. Do you understand?
47OFFENDER: Yes, I do, your Honour.
48Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the sentence imposed would have been a sentence of 2 ½ years’ detention in a Youth Justice Centre.
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