Director of Public Prosecutions v Barnes and Lehmann
[2016] VCC 1212
•16 August 2016 [at Melbourne]
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-16-00863
CR-16-00867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN TIMOTHY BARNES and |
| EDWARD LINDSAY LEHMANN |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 10 August 2016 | |
DATE OF SENTENCE: | 16 August 2016 [at Melbourne] | |
CASE MAY BE CITED AS: | DPP v Barnes and Lehmann | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1212 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Duckett | Office of Public Prosecutions |
| For Accused – Barnes | Mr J. FitzGerald | Victoria Legal Aid |
| For Accused - Lehmann | Mr M. Allen | db Criminal Law |
HER HONOUR:
1 Dean Barnes and Edward Lehmann, you have both pleaded guilty to one charge of aggravated burglary. The maximum penalty applicable to that offence is 25 years’ imprisonment.
2 You, Barnes, have also consented to me hearing a summary offence pursuant to s145 Criminal Procedure Act, and have pleaded guilty to driving while being disqualified. The maximum penalty applicable for that offence is 240 penalty units or 2 years' imprisonment for a subsequent offence.
3 This crime arises out of events which took place at Darlington on 29 February 2016 when you both entered as trespassers a building with intent to commit an offence involving an assault to a person therein. You, Edward Lehmann, had with you an axe, and you, Dean Barnes, knew Mr Lehmann had the axe with him at the time of entering the building.
4 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor (Exhibit A) and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
5 I turn to a brief summary of your offending. You, Barnes, were 35 years of age at the time of this offending, and you, Lehmann, 34.
6 At the time of this offence you, Barnes, were living on Hamilton Highway, Darlington, with your ex de facto partner, Elizabeth McIntosh. That is a rural and sparsely populated area of south-west Victoria about three kilometres from where the offence took place.
7 At the time of this offence you, Lehmann, were originally from Mount Barker in South Australia, and were living transiently.
8 I turn to the victims of your offending, Dylan Cosgrove and Grace Ploenges-Beltchev, who were 28 and 24 years of age respectively at the time. They lived together on a rural property just out of Darlington with their two young children 6 months and 18 months of age. Both children were present when your offending took place.
9 Both victims knew you, Barnes, as following a domestic dispute with Elizabeth McIntosh you stayed with them at their property for several months before this offence occurred.
10 On 29 February 2016 you, Barnes, were at your home with Lehmann. You had both been drinking alcohol since about 4.00 pm that day and continued to drink as the night progressed. You, Lehmann, had also been smoking cannabis. I note the instructions from you, Barnes, were you were not smoking although I note Ms McIntosh suggested this in her undated reference.
11 You both believed that the victims had notified the Department of Health and Human Services about concerns regarding Barnes and Ms McIntosh’s children. You discussed this between you as the night progressed while continuing to consume alcohol. The anger in both of you welled up to the point where you both decided to attend the victims’ home to confront them.
12 At approximately 10.20 pm you, Barnes, placed an axe in the boot of Lehmann’s car. Lehmann drove off without waiting for you. You returned inside and got the keys to your own vehicle, and despite pleas from Ms McIntosh, you got into your vehicle and followed Lehmann to the victims’ home.
13 At the time of this offending, Barnes, your Victorian driver’s licence had been cancelled and you were disqualified from driving (summary charge).
14 Your two victims had arrived home just minutes before you both arrived at their home. Cosgrove had locked the door and his partner was putting the children to bed. She heard a loud revving noise and called out to Cosgrove, who was in another room.
15 Several minutes later Ms Ploenges-Beltchev heard both your cars pull up at the front of the house near the kitchen. She became fearful, and dialled Triple Zero. You, Lehmann, took the axe out of the boot of your car, and both of you approached the house, yelling. Ms Ploenges-Beltchev heard the words, “Open up cunt, you’re dead.” Cosgrove went to the rear bedroom looked out the window and saw a vehicle with its door open, and a man yelling.
16 You, Lehmann, smashed open the back door with the axe, part of the door breaking off and landing three metres from the door. You both then entered the house and confronted Cosgrove, saying words to the effect something about DHS and something about stealing stuff three weeks ago. Cosgrove identified one of you as Dean Barnes.
17 Cosgrove stood in the doorway of the lounge room to prevent the two of you further entering into the house. You, however, advanced towards him. Both your victims and their children were forced into the rear bedroom.
18 You, Lehmann, swung the axe at Cosgrove, who grabbed the metal part of the axe. You then hit Cosgrove with the handle of the axe, striking him to the face but not causing him any physical injury.
19 You were both yelling at Ploenges-Beltchev, threatening to cut her head off and that you were going to kill her and Cosgrove.
20 Cosgrove pleaded with both of you to leave the house, and tried to explain that he had not contacted DHHS. He told you he had called Triple Zero. Both of you got into your respective vehicles and drove away.
21 Police attended at the victims’ property at approximately 10.50 pm and saw damage to the rear door of the premises leading to the kitchen area. As police were concerned about the safety of the victims, crisis accommodation was arranged for them and their children.
22 At approximately 3.30 am you, Barnes, were arrested at your home, taken to the Warrnambool Police Station and interviewed. In answer to the questions you exercised your right to answer “no comment” to all questions asked in respect of the allegations.
23 You, Lehmann, were arrested in Portland at the address of your former partner, taken to Portland Police Station and interviewed. You also exercised your right to answer “no comment” to all questions asked of you regarding the allegations.
24 You were both remanded in custody to appear at the Warrnambool Magistrates’ Court for a committal mention hearing on 18 May 2016, and on that date pleaded guilty to appropriate charges. Your plea hearing was adjourned ultimately before me. The prosecution conceded this was your earliest opportunity for both of you to plead guilty, and I accept that is so.
25 As you have both pleaded guilty to this charge relevant to Lehmann, and charges relevant to you, Barnes, you are entitled to have that fact taken into account in your favour, and I do so. The community has by your pleas been spared the time and cost of a trial, and witnesses have been spared the ordeal of having to give evidence upon your trial. In particular I refer to the victims of your offending.
26 I also take into account in your favour you both intimated early your intention to plead guilty to these charges, as conceded by the prosecution.
27 I am prepared to accept that in your respective cases your pleas of guilty to the charge/s before me indicate remorse for your offending.
28 Turning to you, Lehmann. You have admitted a prior court appearance at Wodonga Magistrates’ Court on 9 November 2015 of unlawful assault and assault in company. I was told that you, in the company of others attended your neighbour’s property as a result of something the neighbours said to your partner/friend. You punched the victim to the face. For that offending, without conviction, the matter was adjourned to 9 November 2016. Your offending before me occurred approximately three months after you were placed on that undertaking and breaches that undertaking. You are of course not being resentenced for those charges. However, your breach of a Court order is relevant when I assess your rehabilitation prospects. I note that offending also is of a similar type of offence, i.e. involving violence.
29 You also have admitted a number of other prior Court appearances from 2000-2014 in South Australia and New South Wales. These involve offences including break and enter, larceny, unlawfully on premises, driving offences (including exceed pca), failure to comply with bail, hinder and resist police. I note no prior offending for aggravated burglary or for the type of violence before me.
30 For your previous offending you have received fines, a bond, a community service order (work only) and a term of imprisonment (the latter in 2012).
31 You have matters pending, however as they are yet to be determined I disregard them when sentencing you.
32 You, Barnes, have admitted an extensive prior criminal history, with your first appearance on 27 April 2000 and most recent court appearance on 21 December 2015.
33 You have admitted a number of relevant prior criminal matters. In that regard I note most recently, on 21 December 2015, you were before the court on charges of contravening a Community Correction Order and aggravated burglary. The original order was confirmed, and you were convicted and placed on a Community Correction Order for a period of 12 months, the order commencing on 13 July 2015. Your offending before me breaches that order, and also a Community Correction Order imposed on 5 October 2015. You are not, of course, being re-sentenced by me for those breaches, however your non-compliance with Court orders is relevant when assessing your rehabilitation prospects. I also note the prior charge of aggravated burglary in the same type of offence as that before me, although no weapon was then present.
34 In addition, you have a number of other relevant criminal offences for violent type offending, intentionally damaging property, and also offences involving dishonesty and contravening a Family Violence Intervention Order. You have also admitted a number of driving offences including drive whilst disqualified and driving under the influence. You have also previously spent time in custody for your offending.
35 You also have matters pending. These are yet to be finally determined although your counsel indicated your intention to plead guilty to them. I have disregarded the pending matters when sentencing you on the two charges before me.
36 You have previously had the benefit of Community Correction Orders, or community-based orders, which you have breached, and have also breached a suspended sentence previously imposed. Your criminal history is extensive and very troubling, given the nature of the offence of aggravated burglary before me.
37 Mr Barnes, your counsel Mr FitzGerald, tendered a written outline of submissions for your plea hearing and addressed those during the hearing. He conceded your offending was serious. It is.
38 You are 35 years of age at sentence.
39 You are in a relationship and have a 3 year old son. Your partner from approximately 2011, Ms McIntosh, also has a daughter from another relationship who also lives with you.
40 You and your partner were expecting another child on 25 August 2016, however I was told your baby, Maliki, was born on 9 August 2016, the day before your plea hearing before me.
41 You have two other children from a previous relationship. Medical reports tendered, to which I shall later refer, speak of you being a carrier of mitochondrial disease, and I was told three of your children had died in their infancy.
42 Turning to your relationship history. I was told of your first significant relationship and three children of it. One of those children died from what was described to you then as spina bifida. That relationship ended.
43 Your next relationship was with Ms Paynter. Your son (with her) Zac died at 4 months of age, again you were told of the result of complications of spina bifida. That relationship ended.
44 In your current relationship with Ms McIntosh, you had two other children. One child died in 2014. As I have said another child was born just prior to your plea hearing.
45 I was told it was not until 2014 you were told you were the carrier of mitochondrial disease. Your son with Ms McIntosh, Wyatt, is often unwell. Tests to date regarding Maliki showed she did not have a fatal variant of this disease. Further testing is expected.
46 You are one of three children with two step-brothers and two step-sisters as a result of your parents separating and re-partnering. You described a happy childhood, finishing Year 9 at school.
47 You have had a number of jobs since then which have kept you in regular employment until relatively recently.
48 You commenced alcohol consumption from age 18, often binge drinking. It was conceded by Mr FitzGerald that your prior offending, including prior aggravated burglary, occurred in the context of your excessive alcohol consumption, as did your offending before me. Mr FitzGerald conceded your knowledge of offending when having consumed excessive alcohol was an aggravating feature when sentencing you.
49 Mr FitzGerald also tendered a report from David Ball, Forensic Psychologist dated 22 July 2016, and relied upon his conclusion you had some insight into your offending. You were also aware of the adverse impact of the deaths of your children upon you and self-medicating with alcohol for unresolved grief.
50 I turn to that report. At the time of interview with Mr Ball, you had been in custody for approximately four months, employed in the prison factory and participating in an information technology course. You were, however, after an altercation with a prison officer at the Melbourne Remand Centre transferred to Barwon Prison. You had not been subject to bullying or harassment and denied any disciplinary issues at that prison.
51 You were currently prescribed medication for depression and receive social visits from your partner and children.
52 You said you were ‘doing gym training’ in custody.
53 Mr Ball found no evidence of mental illness such as psychotic ideation, hallucinations, or delusions, and you denied any such symptoms at any time in your life. Mr Ball estimated your IQ would fall within the normal range, although he did not specifically assess that.
54 You impressed him as a person with the capacity to exercise good judgment and that you had some insight into your offending, and were broadly insightful into your own psychological functioning. You continued to feel responsible for the death of your children through your genetics and struggled with grief.
55 Details were obtained by Mr Ball regarding your background and history. You described your family as being untroubled by mental illness, domestic violence or substance abuse during your formative years.
56 You described yourself as generally a ‘good student’, without any significant social or disciplinary issues during schooling.
57 Despite a variety of semiskilled employment you have had significant periods of stable employment, although had not participated in paid employment since your last assessment.
58 Regarding your youngest child with your present partner, you described that child as being ill and having undergone ‘several operations’. Not surprisingly, you fear for the health of your child, particularly in light of your prior experiences of deaths of your children.
59 When acknowledging your prior offending, you attributed those offences to ‘drinking mistakes’.
60 Regarding your current offending, you explained it in the context of alcohol and associating with negative peers. Mr Ball stated that you suffered low self-esteem and were significantly affected by unresolved grief. Your repeated escape recourse to substances was an attempt to calm anger, anxiety and dysthymic mood following the death of your children.
61 Mr Ball concluded you satisfied the diagnostic criteria for Mild Alcohol Use Disorder – in early remission – in a controlled environment (in custody).
62 Mr Ball was of the opinion that your safe management in the community would be challenging given your criminal history and rapid relapse into alcohol abuse. Prior to release, you would require intensive drug and alcohol relapse prevention treatment and you would benefit from mood management and grief counselling.
63
Mr FitzGerald also tendered a Community Correction Breach Report dated
21 July 2016, referrable to an upcoming Court case on 18 August 2016 (originally 25 July 2016 – and I note Case Number G11423089 has resolved to a charge of handle stolen goods, not burglary and theft).
64 He submitted the report provided some optimism regarding your rehabilitation prospects. It would seem you continued with Corrections despite offending (including committing the offences before me) until remanded for the offending before me.
65
You attended nine sessions with ACSO Coates, exiting the program on
29 January 2016 and had complied with prescribed medication.
66 You were considered a high risk offender but you had made efforts to comply with the Community Correction Order, having completed treatment regarding alcohol issues, and having contact with psychologists.
67 Unfortunately, I note however this did not continue, and you resorted to excessive alcohol consumption and further offending whilst on that Community Correction Order.
68 Mr FitzGerald also provided me with a number of documents relating to the unfortunate death of your baby son in 2014. I turn to these only briefly but have read each carefully.
69 Before me was a report from the Royal Children’s Hospital by Dr Julia Gunn dated 20 August 2014. The findings were highly suggestive of a mitochondrial disorder, although that diagnosis was unlikely to be in isolation.
70 Also before me was a report from Dr Susan Heggarty, Neo-natal Fellow at the Royal Children’s Hospital, dated 19 June 2014, again referring to the death of your son. I have no doubt the death of your son was extremely distressing for you, to say the least.
71 I was also provided with correspondence dated 1 June 2016 from the Warrnambool Genetics Clinic. You and your partner, Ms McIntosh, were to attend an appointment with the Genetics Clinic on 7 June 2016 to review the recurrent risk in your then-unborn child and to examine your son Wyatt and your partner Elizabeth’s daughter to assess whether or not they had similar medical issues. In the opinion of the author of that report, Dr Young, your unborn child was a 25 per cent risk of the same condition as the deceased baby, although no testing could be offered at that time in relation to the current pregnancy, as a diagnosis for your son had not been established.
72
Ms McIntosh had been referred by Dr Young to the social work department at SW Health, however, when Dr Young last spoke to her she had not had contact with that department, and was worried about who would look after the children when she went into labour. It was suggested by Dr Young that
Ms McIntosh make an appointment at the ante-natal clinic, and speak to a social worker for assistance.
73
There was also correspondence from Dr Buchanan, dated 9 March 2016, confirming Ms McIntosh’s then pregnancy and then expected birth date of
25 August 2016. The current pregnancy was likely to be affected by mitochondrial disease he thought, however I note tests to date have not confirmed the illness.
74 There was also correspondence from Ms McIntosh, undated. She described you and your co-offender Lehmann until the offending consuming drugs and alcohol daily. I note again your instructions, Barnes, that you were not smoking cannabis. She described her concern regarding the health of her unborn child and managing the other children during your incarceration.
75 Whilst not relying upon the circumstances of your partner’s ability to cope with the children and new baby as family hardship amounting to exceptional circumstances, I accept consistent with general sentencing principles you will be concerned and worried about your partner and the children during incarceration. I note Ms McIntosh’s mother lives approximately 160 km away and whilst can lend support, will have difficulty assisting long term.
76 Mr FitzGerald appropriately conceded a term of imprisonment with a non-parole period was the only appropriate disposition to reflect all sentencing considerations including the gravity of your offending and all matters personal to you and in mitigation of your sentence.
77 He urged, and again I note, your plea of guilty and remorse through that.
78 Regarding you Barnes, I have at best guarded optimism regarding your prospects of rehabilitation given your extensive criminal history and continued resort to alcohol/drugs to assist with your grief. The material before me, including the report of Mr Ball, does not, in my opinion, lead to a reduction in your moral culpability although your background to this offending forms part of your personal circumstances that are relevant when sentencing you.
79 You are yet to address your grief and until you do you are likely to resort to excessive alcohol/drug use and offend again. However, in fixing an appropriate sentence I must seek to maximise your chances of rehabilitation as they may be.
80 I have been told something of your personal background and history, Mr Lehmann, by your counsel, Mr Allen.
81 At sentence you are 34 years of age.
82 You are the youngest of three children. Your home environment involved excessive alcohol consumption, and physical abuse by your father to your mother and all siblings.
83 Your father left the family when you were 4 years old and took your brother, Peter, with him. You have not had any contact with Peter since you were 8 years old.
84 Your mother re-partnered when you were 7 years old. You described your step-father as also a severe alcoholic, abusive and violent. You described an ongoing close relationship with your mother, however had not seen your other brother, William, since he left the family home when you were 17.
85 Your education involved attending a number of primary and secondary schools as the family moved house frequently. That made it difficult for you to make social connections.
86 You completed Year 9 then worked in various jobs. From ages 22-31 you were employed on a full time basis in South Australia. You moved to Victoria in 2014. Until your recent remand you had not received any formal education and training.
87 Turning to your drug and alcohol use, you started drinking alcohol when 15 years of age, binge drinking on weekends and daily.
88 You began smoking cannabis in your early teens from age 16 until this offence, consuming 2-3 grams of cannabis daily.
89 You began using Ice and speed in your early 20s, initially on weekends then from age 25-30 using those drugs five days per week. Up until your remand in custody you were using about half a gram of Ice daily. From mid December 2015 until your remand, you were using about 1 gram of heroin every week.
90 You reported a period of abstinence mid 2014 to December 2015, when with your partner, Ms Gugliandolo. That relationship was now over and your abstinence ended following the miscarriage of your child at which time you had an ‘extreme’ relapse into drug addiction. On the day of this offending before me you were using drugs on a more intensive level than before and your alcohol consumption had also increased. At the time of this offending your relationship with Ms Gugliandolo had ceased and you were grieving the loss of your child,
91 In 2013 you were diagnosed by your GP with depression and prescribed Zoloft, although did not take that medication instead resorting to alcohol and illicit substances. You have seen a psychiatric nurse while on remand for depression who, I was told, reported your current level of depression as “natural for a prisoner”. You have not recently been prescribed medication.
92 Just prior to Christmas 2015 you moved into the co-accused’s home.
93 Mr Allen conceded your offending was very serious, as he described it ‘truly horrific’ and that your disposition would involve a term of imprisonment. He, however, urged this be combined with a Community Correction Order. He submitted you had not previously had such a disposition, your previous community order involving a work only component.
94 Regarding your offending, he described it as spontaneous, and of feeling aggrieved for Barnes but without prior planning. I disagree, as I discussed with counsel. There was some prior planning in your attendance, albeit not of lengthy duration.
95 Mr Allen submitted your plea of guilty was at the earliest opportunity. I agree. I accept, as I did relevant to Barnes, your plea of guilty reflects your remorse.
96 Mr Allen also submitted your prior offending involved ‘less serious’ offences.
97 He referred to the emotional stress of your relationship breakdown at the time you offended, whilst that, he submitted, did not excuse your offending it explained your resorting to excessive alcohol and cannabis use on this occasion.
98 He submitted you had good prospects for rehabilitation, having completed a number of courses on remand – Relapse Related Harm Reduction Program, 24-Hour Drug & Alcohol Program and the Methadone Program.
99 You had attended and completed the 24-Hour Drug & Alcohol Program between 4 May 2016 and 2 June 2016. You participated appropriately in all twelve sessions.
100 You commenced individual counselling on 23 June 2016 relevant to substance use, and urine screen results of 29 March 2016 and 7 March 2016 were negative for illicit substances.
101 You had also engaged in individual counselling, referred to in correspondence from Jessica Martino, Caraniche, describing that treatment as ‘very beneficial’. It, of course, can only further assist your rehabilitation prospects if you continue to seek counselling and assistance through programs available whilst in custody.
102 You have also completed a number of vocational training and education programs on remand referred to in your counsel’s written outline of submissions (para 33(e)(v)). Relevant certificates were tendered.
103 I also received two character references tendered on your behalf.
104 There was a reference from Paula Reynolds, who has known you for the past five years. You regularly stay with she and her daughter in South Australia. She described you as a loyal friend who helped her around the house. She described your work history in South Australia and your relationships. When you were depressed and angry you would drink and take drugs. You were enthusiastic about undertaking courses in custody. This offending was out of character.
105 There was a reference from your mother, Sandra Hillman. You had expressed remorse for this offending. She described your distress over your recent relationship breakdown and miscarriage of your child. She speaks with you each week. You had completed courses in custody.
106 Mr Allen submitted that you maintained a close relationship with your mother, who you described as a significant support person in your life. You spoke frequently with her on the telephone whilst in custody.
107 Mr Allen submitted your offending was out of character, and referred to your lack of similar such offending in your prior criminal record, which I have also noted. Significantly, you do not have any prior court appearances for aggravated burglary.
108 Mr Allen submitted your offending occurred in circumstances of despair. Your relationship no longer continued and there was a baby of that relationship who died as a result of a miscarriage. He submitted however, whilst not an excuse for your offending or even an explanation for it, it was nevertheless part of the background circumstances and has some relevance.
109 However, Mr Allen also submitted your background mitigated your moral culpability. The circumstances as outlined by Mr Allen and taking into account the circumstances of your offending do not, in my opinion, mitigate your moral culpability. I accept you were upset about your ‘life’ issues at the time, however you chose to resort to excessive alcohol consumption and drug use on this day. Your loyalty to Barnes led to the commission of this offence. I note I have not been provided with any psychological/psychiatric analysis relevant to your culpability. I do, however, note the brief reports from Ms Martino.
110 In custody you had, he submitted, demonstrated some insight into your offending and exhibited some remorse for it by undertaking a number of courses. That is to your credit.
111 On balance regarding you Lehmann, I consider your chances of rehabilitation to be reasonably good, on the basis of courses to date undertaken by you to equip you upon your eventual release. I urge you to continue with any assistance offered in custody.
112 Mr Allen relied upon Boulton & Ors v The Queen relevant to his submission that a term of imprisonment with a Community Correction Order was the appropriate disposition, urging you had not previously had the benefit of a Community Correction Order with treatment conditions.
113 In Alam v The Queen[1] the Court noted that:
“Boulton makes plain that sentencing courts need to rethink the conventional wisdom about whether prison is really the only option. Boulton emphasised the grave disadvantages of imprisonment, and the unique advantages of a CCO, in permitting significant punishment to be imposed whilst at the same time advancing an offender’s rehabilitation in a way that imprisonment cannot.” [20]
[1] [2015] VSCA 48
114 Boulton has also been referred to in many decisions since including Marocchiniv The Queen[2], DPP v Maxfield[3], Hutchinson v The Queen[4] and recently Gul v The Queen[5]. This list is by no means exhaustive
[2] [2015] VSCA 29
[3] [2015] VSCA 95
[4] [2015] VSCA 115
[5] [2016] VSCA 82
115 In Hutchinson, Priest JA however cautioned:
“… it should not be thought that Boulton offers a ‘Get out of Jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.: [17]
116 I did not understand Boulton to remove the requirement that a sentencing judge take into account all of s5 Sentencing Act 1991 (not just s5(4C) of the Act), nor did I understand Boulton to mean that the sentencing principles stated by the Court of Appeal relevant to this type of offending (aggravated burglary) now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis required when sentencing.
117 Nor did I understand Boulton to remove the need to be mindful of the maximum penalty for this type of offence, as set by Parliament.
118 Having carefully considered Mr Allen’s submissions, I do not regard the imposition of the combined disposition urged by him as appropriate in your case, having taken into account not only the gravity of your offending but also all matters personal to you and in mitigation of your sentence.
119 I sentence you both as principal offenders in the offending before me (aggravated burglary), despite being aware, of course, that you, Barnes, did not physically have the axe in your hand. Nevertheless you were aware of the presence of the axe at the time you attended and broke into that property. Both counsel agreed you were to be sentenced as principals in this offending.
120 When sentencing both of you I am conscious of the principles of parity (see R v Taudevin[6] and Postiglione v R[7]). There is no distinction to be drawn in your respective roles in this offending and nor was such urged by your counsel.
[6] [1996] 2 VR 402
[7] (1997) 189 CLR 295
121 Parties to the commission of the same offence should receive the same sentence, but matters such as age, background, prior criminal history, character and role played in the offence are taken into account. It is also well established that punishment must be appropriate to the crime and prior convictions may negate the mitigatory factor of good rehabilitation prospects.
122 Prior convictions are relevant to specific deterrence and I discussed this with both counsel. The difference between your respective criminal record histories is a significant and relevant distinguishing feature. I also note your recent efforts, Lehmann, in custody to rehabilitate yourself.
123
There was a victim impact statement from Grace Ploenges-Beltchev, sworn
9 August 2016.
124 The adverse impact upon she and her family have been profound. Her 2 year old daughter was continually afraid as a result of your offending and has had psychological treatment and counselling.
125 Ms Ploenges-Beltchev has now been prescribed ENDEP, an antidepressant. She also had nightmares of your offending.
126 She quit her job as she was scared one of your associates would come to her workplace. That led to her reduced financial circumstances. She has also moved from her home as she relived your offending whenever she entered her house.
127 Her partner, Dylan, felt like he had failed to protect the family They had, as a result of your offending, separated.
128 Their right to feel safe had been abused by your offending. She did not understand your offending, in particular you Barnes, as they had supported you.
129 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
130 The prosecutor, Ms Duckett, submitted both of you were in the house for at least 10 minutes. Whilst the prosecution could not submit you, Lehmann, knew of the presence of the children in the house prior to your attendance, you knew of their presence when you entered. You did not, she submitted, know of their existence when you later saw them in the bedroom under blankets. As I discussed with Mr Allen, the evidence did not support the submission that you only became aware of them in the bedroom under blankets.
131 Ms Duckett referred to Hogarth v The Queen[8] and the seriousness of the offence of aggravated burglary.
[8] (2012) 37 VR 658
132 Turning to parity, Ms Duckett referred to your, Barnes, having a prior conviction for aggravated burglary. She also referred to your breach of two Community Correction Orders. Ms Duckett referred to Lehmann’s breach of a good behaviour bond. You, Barnes had previously breached Community Correction Orders and suspended sentences, which showed your repeated non-compliance with Court orders.
133 Regarding your involvement, Lehmann, Ms Duckett submitted you were involved in something that ‘was not your argument’ and you took the axe from the car and into the house. Mr Duckett conceded you were both ‘emotionally distressed’, as described by your respective counsel and also noted by me in these sentencing remarks.
134 In Scott v The Queen[9], the Court referred to the deprived/difficult background as a relevant sentencing consideration.
[9] [2013] VSCA 347
135 I accept both of you have come from such a background (as described by your respective counsel) and have taken that into account as part of your personal circumstances.
136 In Marrah v The Queen[10], the Court noted such a background did not provide an excuse for offending behaviour.
[10] [2014] VSCA 119
137 In my opinion, the nature of your offending before me which involves consumption by both of you of a significant quantity of alcohol, and in your case Lehmann also a significant quantity of cannabis, and your then attendance including reasons for same at the victim’s property in two cars and armed with an axe, does not reduce your moral culpability, referrable to both or either of you. See also Bugmy v The Queen[11].
[11] [2013] HCA 37
138 Ms Duckett submitted your offending required immediate imprisonment, with non-parole periods.
139 As well as matters personal to you to which I have referred, including your respective prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this (see Hogarth v R[12], DPP v Meyers[13] and Anderson v The Queen[14]). In Meyers the Court referred to a number of considerations when assessing the gravity of the offence of aggravated burglary, many of these I note also relevant to this offending (paragraph 47).
[12] [2012] VSCA 302
[13] [2014] VSCA 314
[14] [2014] VSCA 255
140 There is also the need for specific deterrence when sentencing you, as you both have a prior criminal history, yours Barnes more extensive and I note with a prior offence of aggravated burglary – person present (no allegation of a weapon). You both have offending involving violence, although not the same type as this in your case, Lehmann. You, Barnes, have breached numerous Court orders relevant to your rehabilitation prospects. You, Lehmann, to a lesser extent with a breach of an undertaking.
141 I must consider the question of the protection of members of the community from you both, and bear in mind the likelihood of your reoffending. This remains a relevant consideration when sentencing both of you, more so you, Barnes, given your extensive and relevant history of violence. I also note the Correction Breach Report assessed you as a high risk offender without appropriate courses/counselling being undertaken. You have a long way to go to address those issues.
142 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your respective conduct, and generally to impose just punishment.
143 In my opinion, the only appropriate disposition that reflects the gravity of your respective offending and taking into account all matters in mitigation of sentence and personal to each of you, is a term of imprisonment with a non-parole period.
144 I sentence you as follows:
145 Dean Barnes, on charge 1, you are convicted and sentenced to 5 years sand 6 months’ imprisonment.
146 On the summary charge of driving whilst disqualified, you are convicted and sentenced to 2 months’ imprisonment.
147 Charge 1 is the base sentence and I direct that 1 month of the summary charge be served cumulatively upon charge 1.
148 That results in a total effective sentence of 5 years and 7 months’ imprisonment and I direct you serve a period of 3 years and 6 months before you are eligible for parole.
149 You, Edward Lehmann, are convicted and sentenced to 4 years’ and 6 months' imprisonment, and I direct that you serve a period of 2 years and 6 months before you are eligible for parole.
150 Pursuant to s18(4) Sentencing Act 1991, I declare both of you have spent 168 days in custody (up to and including 15 August 2016) by way of pre-sentence detention and direct that that be entered into the records of the court relevant to each and both of you.
151 Pursuant to s6AAA of the Sentencing Act 1991, had you, Mr Barnes, pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 7 years’ imprisonment and set a non-parole period of 5 years and 6 months.
152 Pursuant to s6AAA of the Sentencing Act 1991, had you, Mr Lehmann, pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 5 years and 6 months' imprisonment and set a non-parole period of 3 years and 6 months.
153 The prosecution made application for a Disposal Order relevant to the axe seized with regard to you, Barnes. Counsel on your behalf did not oppose that order being made, and I make the order in the terms sough, i.e. Disposal Order..
154 The prosecution also made application with regard to you Lehmann, for a forensic sample pursuant to s464ZF Crimes Act 1958. That was not objected to by counsel on your behalf, and I make the order in the terms sought. I make the order on the basis of the seriousness of this offending and your prior offending history. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
155
Following the plea hearing I had Ms Jackson, my associate, contact
Mr FitzGerald and Ms Duckett (with a copy to Mr Allen) requesting brief written submissions relevant to licence cancellation and disqualification of you Barnes.
156 I received written submission from both Mr FitzGerald and Ms Duckett (Ex C).
157 Ms Duckett submitted a period of disqualification was appropriate (R v Lefebure & Anor[15]). The duration of such, she urged, to extend beyond time served in custody yet not to crush your reintegration and rehabilitation in the community.
[15] (2000) 31 MVR 131
158 Mr FitzGerald referred to your limited prior driving offences. It was anticipated after serving your sentence you would return to live with your partner in Darlington, a relatively remote location, and that having a licence would assist with the children, attending appointments, finding employment and so on.
159 Mr FitzGerald submitted further disqualification beyond your period of incarceration would impact upon his reintegration and be punitive.
160 He urged no order be made against your licence, however if I determined such an order was appropriate the duration should be limited to enable your successful reintegration into the community.
161 In my opinion, a period of cancellation and disqualification for a period of 4 years is appropriate, taking into account all relevant sentencing considerations, including your rehabilitation upon release and the punitive aspect of such an order (Lefebure).
162 HER HONOUR: Any other orders?
163 MR FITZGERALD: No Your Honour.
164 HER HONOUR: Now was there anything about Barnes with the 464, I didn't think so.
165 MS DUCKETT: NO.
166 HER HONOUR: Got that. Now the forfeiture order became disposal order with the documents, is that correct?
167 MS DUCKETT: Yes.
168 HER HONOUR: Yes, excellent. PSD. So PSD right?
169 MS DUCKETT: Yes.
170 HER HONOUR: Because it was the 1st as I understand it, of March, not the 31st or whatever date.
171 MS DUCKETT: I was at 168 Your Honour.
172 MR FITZGERALD: I was too Your Honour.
173 HER HONOUR: Everyone is happy with 168.
174 MS FITZGERALD: Yes Your Honour.
175 MR ALLEN: Yes Your Honour.
176 HER HONOUR: All right, well I mean not so much as happy but I should say you agree. PSD is correct. Is there anything further?
177 MR FITZGERALD: No Your Honour.
178 MR ALLEN: No Your Honour.
179 MS DUCKETT: No Your Honour.
180 HER HONOUR: Thank you both or three of you rather for your assistance, thank you.
- - -
0
5
0