Director of Public Prosecutions v Bellette

[2018] VCC 366

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-00893

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERESA BELLETTE

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Warrnambool
DATE OF HEARING:	22 March 2018
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Bellette
MEDIUM NEUTRAL CITATION:	[2018] VCC 366

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr M. Turner	Dwyer Robinson Lawyers

HER HONOUR:

1Teresa Bellette, you have pleaded guilty to one charge of aggravated burglary.  The circumstances are these.  In December of 2015, one of your daughters, then a child under 18, reported that she had been sexually assaulted.  It would appear that William Baird, the perpetrator she identified, was also a young person, who was at the same school that she attended.  He was interviewed and charged, but a year later, on 29 November 2016, you and your daughter were advised by the police that a decision had been made to discontinue the charges against him, or withdraw the charges.  The police considered there was insufficient evidence to justify pursuing the prosecution. 

2The investigating officer came to your home to explain this to you and your daughter.  You were both upset at the news.  You said to the investigating officer, "Does that mean that I can go and bash him?", referring to William Baird, the person who had been charged with the sexual assault of your daughter.  The investigating officer said to you "No it doesn't".  Your daughter, according to him, had tears welling in her eyes.  You told him that he should leave because your daughter might blow up.  He left.  It would appear less than two hours later, this daughter then sent messages to William Baird’s brother, seeking William Baird’s address.  That led to a series of exchanges between various people and ultimately, a phone call from Mr Baird's housemate to your daughter asking her not to come to the house.  Your daughter replied saying, "I'll be there soon and I'll fuck your shit up".

3There was some further interventions between members of both camps, if I can put it that way.  Your youngest daughter contacted the mother of William Baird and told her amongst other things, that her family was "Really pissed off with him".  By about 11 o'clock that night, so that is about four hours after the police had come to tell you and your daughter the charges were going to be withdrawn, you, your daughter, your partner and another young man were at the door of the unit that Mr Baird and his two housemates occupied.  Those housemates, like Mr Baird, were also young. 

4There was thumping on the door and Mr Baird identified your voice yelling out to them to "Open the door".  In fact saying, "You have to the count of three and then I'm going to kick the door in".  They did not open the door, but it was kicked in and they were then able to see you standing in the doorway, armed with a cricket bat.  Behind you were your partner, your daughter and the young man.  Your daughter threw her mobile phone through the front window at some stage, breaking the window.  You led the group into the unit, calling out, demanding to be told who had been on the phone to your daughter.  There had apparently been a phone call to your daughter, sometime between the time the police had told you the charges were to be withdrawn, and the arrival of you and the others at the unit.

5You believed that there had been a threat in that call, that Mr Baird would rape your daughter.  In any event, it was clear that you were at the front of the group, holding the bat, when the door was kicked in and you were the one who had demanded that the door be opened or it would be kicked in, before it was in fact kicked in.  It was also clear that you were angry and looking for people in the house, clearly wanting to, in some way, deal with or remonstrate with them.  Your daughter caused property damage inside the house, smashing glasses, throwing furniture over and throwing things through the window and also making a vile and really disturbing threat to the seven months pregnant young woman, who was in the unit. 

6The young man and somebody else both started to assault Mr Baird.  Your daughter also assaulted him.  The pregnant young woman to whom threats had been made was on the phone to Emergency Services.  You, your partner, the young man and another unknown male then left the unit.  Your daughter remained in it, continuing to yell at Baird until your partner came back inside and retrieved her.  You were interviewed the following day and denied all the allegations, saying that you had not even left your house that night.  Your partner was also interviewed.  He also denied all of the allegations, saying that he had only left the house to go and buy smokes.  All four of you, you, your partner, your daughter and the young man, were ultimately all charged with aggravated burglary and other offences.

7Your daughter and the young man, both of whom were still under the age of 18, ultimately pleaded guilty to charges of aggravated burglary in the Children's Court.  Your daughter was sentenced to a bond, the young man to twelve months' probation.  Charges ultimately were discontinued against your partner, once police were satisfied that there was evidence that it was he who had removed you, and then your daughter from the premises.  It is those circumstances therefore, that describe your conduct giving rise to the charge of aggravated burglary.  Although you denied, when interviewed, that you were at the unit and asserted that you had not left your house on the night of the incident, you ultimately entered pleas of guilty at a committal mention in May of 2017 and have maintained that preparedness to plead guilty to that charge since then.  And so it is, the matter comes before me.

8Aggravated burglary is itself a very serious offence.  That is in part measured by the maximum term of imprisonment, 25 years prescribed by Parliament.  There are different types of aggravated burglaries.  The law makes it very clear that this type, what we call a confrontational aggravated burglary, going to a house, armed, in numbers in order to exact some sort of vengeance or revenge on people, is one of the more serious categories of aggravated burglary.  This is a bad example of its type of confrontational aggravated burglary.

9The aggravated burglary itself, the circumstances that I have outlined, are disgraceful.  A group of people, a woman of mature years, her partner, her under aged daughter and an under aged friend of the daughter's, going to a unit occupied by three young people.  You, by the time the door was opened, at the front of the group and armed with a cricket bat and entering, in order clearly, to cause or to threaten to cause harm to the occupants, by reason of, first it would appear dismay at the decision by the police to discontinue the charges and then anger, fuelled by what had been said, or what you were told had been said, in a conversation to which you were not a party.  It is self-precipitated by angry verbal confrontation over the withdrawal of the charges.  So it is serious because it was fuelled by anger in those circumstances. 

10It was an aggravated burglary in company.  You and those with you outnumbered the occupants of the unit and two of you were significantly older than the occupants of the unit.  One of them was a seven month pregnant girl.  You were not only first in line, when the door was smashed in, you were the one armed with the cricket bat and you were the one who first walked in and angrily demanded to speak to the person who you believed had been speaking to your daughter on the phone.  You were the oldest of the group and should have been the most mature and most responsible.  Not only by reason of your age, but because you were the mother of the child who had made the complaint of sexual assault, in respect of whom the charges had been laid and who had then been told as had you, that the charges were to be withdrawn and the reasoning process informing that.

11Whilst a mother is obviously going to love and want to protect her children, to lead your own child when there is already a sense of grievance about what has happened, into the house of the person believed to be the perpetrator of a criminal offence, in order to deal with them, is motherly role modelling of the worst possible sort.  That clearly makes your role in this already disgraceful affair, a very serious one.  Not only should you have been trying to stop your daughter, but you should have been modelling much better behaviour.  It was put that you had followed your daughter and her friends to the house.  That it was not your original plan, that you had not initiated it.  The material does not allow me to decide whether that is so or not.  What I have to take into account, as I said to your counsel in the course of submissions, is that, on the agreed summary, you were the first at the door, you were armed with the bat, you were the first in and you were demanding to see somebody and obviously in circumstances where you wanted to deal with them. 

12You should have been modelling much better behaviour than that.  That is, not taking revenge, retaliation or punishment into your own hands and not modelling to your daughter, that this was acceptable behaviour, either by reason of disappointment at the police decision, or by reason of whatever had been said in the confrontational phone calls that had flowed, following on from her response, her understandably distressed response to the police notification of the decision to withdraw the charges.

13This is, as the prosecutor put it, vigilante action and it simply cannot be countenanced.  Vigilantism at any time, and in any form, is to be decried.  No civilised society can exist with it.  People cannot have a sense that they are properly safe and properly protected, if other citizens think that they have the right to take into their own hands, the decision as to whether a crime has been committed, as to whether a person should be charged, as to whether charges should be proceeded with, as to what the outcome of the charges should be, or to exact or inflict punishment.  That is mob rule and everybody is rendered less safe and less civilised if we allow that to happen. 

14You and anybody else who thinks that they can act as you did, and to allow others with you to act as they did, must be condemned, must be justly punished and their vigilantism must be decried.  So it is very clear that denunciation, deterrence and just punishment are the most important and significant sentencing factors, in a case such as this generally and in your circumstances. 

15What then are the considerations personal to you, that weigh against the need to give those significant sentencing factors such weight?  Well you are 46.  You come before the court as a woman who has no previous convictions, apart from what I am told are minor traffic convictions and some relating to your dogs. 

16The daughter, around whom this case turns, the one who had made the complaint of being sexually offended against, is the fifth of your six children and you and your children have obviously led a very difficult life.  You grew up in Tasmania, you left school young because of poor family circumstances and no family expectation of doing anything other than leaving school as early as possible and going to work to support that family.  You were in the workforce by the age of 15.  By the age of 18, you were married and pregnant with your first child.  You had six children to your husband over a period of ten years and your marriage was marked by violence over the whole of that time, from your husband, the father of those children.  That violence often occurred when he was under the influence of alcohol, and although it would appear from what I am told, that you were the direct victim of the violence, they were often exposed it, as it was inflicted on you.  Sadly, and as all too often is the case, it was very difficult for you to leave safely and so for many years, you were caught up in a pattern of not leaving, putting up with the violence or leaving and hiding and going back.  It was a considerable time before, it would appear, you were able to break that cycle and safely and more permanently leave. 

17You ultimately left your extended family and your violent husband in Tasmania and came to Victoria and would appear from 2010, for most, if not all of the time, you have lived in this state.  Your husband, from whom you are separated, but not divorced, you fearing that initiating divorce might escalate further threats and violence towards you, has spent periods in gaol in Tasmania.  Those periods of gaol I am told have been for offences of violence, but not for any violence inflicted on you, because your circumstances were such, that you were not making reports to the police, or seeking - or feeling safe enough to obtain the protection of the courts either, by the laying of complaints leading to criminal charges or the obtaining of family violence safety orders.

18In any event, since you came to Victoria in 2010, you seem to have been able to be physically free of him and to be safe whilst he remains in another state.  By 2012 or 2013, you had settled in Warrnambool.  Five of your six children are here in Warrnambool and three of them, three daughters, your second, third and fourth daughters, all live with you.  The two children of your second daughter also live with you.  It is a testament to the way you must have protected your children and to the mothering you have provided them, that you seem to have maintained close contact and to continue to provide support to all of your children, despite the violence that you were subjected to and that they were exposed to.

19Not only do you have three of your daughters and your two grandchildren living with you, it became clear in the course of the plea that your second daughter and her two children are living with you because you are seen as a responsible and stabilising influence.  Your second daughter found herself the widowed mother of two children when she was only in her twenties.  I am told that her life then went off the rails and she became involved in drug abuse and offending and not long after you committed this aggravated burglary, she was sentenced to a term of imprisonment for her offending in Tasmania.

20At the end of her term of imprisonment, she was released on probation.  Her children, it would appear, in the meantime, had been living with their paternal grandmother.  Ultimately, court orders have been made giving your daughter the sole parental responsibility for the two children, it having previously been shared with the paternal grandmother.  She was permitted not only to leave Tasmania, where the paternal grandmother, who also had contact rights lives, but also permitted under the terms of a probation transfer, to transfer her Tasmanian probation to Victoria.  I am told and accept that it was a significant protective factor in authorising the transfer of the probation to Victoria, that your daughter and the two children would live with you in Warrnambool.  All of that indicates that your behaviour towards your children, and the way you have lived your life, stands in stark contrast to your conduct on this disgraceful night.

21Despite the obvious difficulties of your upbringing, of your married life and of the early years of your children's lives, you have no diagnosed psychiatric or psychological condition that has disabled you from caring or caring properly for your children, or engaging in paid work.  You report no history of substance abuse, alcohol or drugs and despite being in effect, for much of your life, a single mother supporting the six children and having very little by way of vocational training, you have worked and supported your family and not found yourself in trouble with the law, or it would appear, coming under the attention of the Department of Human Services.  That means that this behaviour on this night does stand in stark contrast to your behaviour otherwise and the responsibility otherwise that you have shown, in caring for your children and modelling, being a better parent for them certainly more than their father has been and providing them with safe and stable accommodation.

22It does make the behaviour much more disgraceful because your children have already clearly been exposed to enough violence in their life, by reason of what their father did.  How could you think that it was acceptable, even if your daughter was the one who first wanted to go to the house, and you followed her, for you then to take matters into your own hand and be an initiator of threats?  You should have been trying to stop your daughter, protect her or remove her.   You acknowledge now that is what you should have done.  Those matters, that is, the contrast between your behaviour on this night and the behaviour in what has been 46 hard years otherwise, counts in my view, for much.  You have otherwise shown what appears to be a remarkable capacity to cope with and overcome adversity and to deal with it in a way without resorting to criminal behaviour, to substance abuse or to otherwise wrong modelling to your children or engaging in abusive behaviour towards them.

23The prosecution has submitted that the needs of deterrence, mainly general because this is clearly a one-off in your life, denunciation and just punishment, require a term of imprisonment immediately served.  After careful reflection, I have decided I disagree.  I consider that those important factors of general deterrence, denunciation and just punishment, can properly be marked in your case by the imposition of a significant and punitive community corrections order.  That is not in any way to detract from what I have said about how serious this offending is and how disgraceful your role was in it, for the reasons that I have identified.  But you are entitled to have weighed into the balance, the credit for the good life you have led over such adversity, otherwise over the last 46 years.

24A community corrections order is not a soft option.  It is, as the court has repeatedly recognised, something that is punitive, as well as rehabilitative and indeed, it is, in terms of the order I intend to impose, a punitive option.  You are going to have a conviction recorded against your name.  That in itself is a punishment for somebody who has lived the sort of life that you have, without coming to the attention of criminal courts.  It is a conviction for a very serious offence.  That in itself, is not only a punishment, but should serve as a deterrent to others who think they can act as you did.

25It should also service a mark of the denunciation of the court for people taking things into their own hands and become judge, jury and executioner, as you sought to do.  It is punitive.  It is going to last for a period of two years.  That means you will be under supervision, under control of community corrections  for that whole two years.  It is a condition of that that you not commit any other offence during that period, that means it has got a real hold over you.  If you do commit any offence punishable by imprisonment and that is almost anything, apart from littering these days, then you will be breached and brought back to this court and probably before me, to be dealt with for the breach.

26If it is a breach, not by non-compliance, but by way of committing further offences, you can be re-sentenced for this original offence of aggravated burglary.  It is also going to have a significant punitive element because I am imposing a significant component of unpaid community work. 

27For you, working the hours that you do and looking after school aged children still at home with you, as well as having an overarching supervision of your two young grandchildren, that is going to be a significant incursion on your time.  It is a way of putting back into the community, by way of unpaid work, something to make amends for your conduct on this night.  You have shown yourself prepared to work hard in the past and there is nothing to indicate that there will be any impediment, apart from your own will to your performing and undertaking the unpaid community work.  But you carry the shame of this lapse of standards.  The shame of a conviction and the shame of having a community corrections order over your head.  That is, in my view, a significant punishment, a significant deterrent and a significant mark of denunciation of such behaviour.

28The courts, however, must be just and compassionate, as well as stern in punishment and your circumstances overall are much more deserving of compassion and pity than those of many of the other people who come before this court.  That is why I am taking what is an unusual course here.  It is not completely without precedent, although most people who plead guilty to and are dealt with for aggravated burglary, particularly most mature adults, do end up receiving a term of imprisonment.  It is not every person who comes before the court for aggravated burglary who is sentenced to a term of imprisonment.  Whilst non-custodial sentences are fewer than custodial sentences, it is still within the range of sentences in the appropriate circumstances that are open to the court.  But I want you to understand that I am going out on a limb for you, in respect of this order and if you want to show that you are deserving of the mercy and compassion that I am showing you, and that you want this to properly stand as a punishment, a deterrent and a denunciation, that it is incumbent on you to abide by the conditions of the order.   So I hope that I will not have to see or hear of you, coming before this court, for breach of the order, either by non-compliance with its conditions or by the commission of further offences.  Could you now please stand?

29Teresa Bellette, on the charge of aggravated burglary, to which you have pleaded guilty, you are convicted and you are sentenced to be placed on a community corrections order for a period of two years, commencing today, 22 March 2018 and ending on 21 March 2020. 

30There are mandatory terms that apply to all community corrections orders and they are these. You must not commit another offence for which you could be imprisoned, during the time that the order is in force. You must comply with any obligation or requirement, prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be affected by drugs or alcohol when you attend at Corrections for any community work or any other attendances required of you and you must submit to drug or alcohol testing, if directed to do so.

31You must report to and receive visits from the Secretary or delegate.  You must report to the Warrnambool Community Correctional Services Centre at 218 Koroit Street, Warrnambool within two clear working days after the commencement of this order.  Now today being Thursday, that means by Monday of next week.  But I suggest you go straight there after court and do your first report if an appointment has not already been made for you.  I see that the assessing officer from Corrections is here in court, you can speak to him, upon your release about making that appointment.

32You must let a Community Corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from, and directions of the Secretary or delegate.  In addition to those mandatory or core conditions, I impose the following additional condition.  You must perform 200 hours of unpaid community work, over the period of two years as directed by the regional manager.

33If you fail to comply with the unpaid community work condition, that is if you do not turn up on any of the days that you are directed to, then Secretary or delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s.83 of the Sentencing Act.  Do you understand those conditions that I have read to you?

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  Do you understand the effect of them?

36OFFENDER:  Yes, Your Honour.

37HER HONOUR:  And do you consent to the order being made?

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  All right, I will have that handed down and can I ask you please Mr Turner or your instructor to accompany my associate to the dock?  Have your client - make sure she understands them and have her sign the order.  Ms Bellette, I have countersigned that order.  When a copy of it has been made and provided to you, you will be free to leave the court.  I meant what I said about hoping that I never see you before this court again, or any other court for that matter.  You can leave the dock, Ms Bellette.

40I should also mark as exhibits the Federal Circuit Court orders dated
5 September 2017 as Exhibit D3 and the email from Department of Justice Tasmania, dated 22 march 2108, as Exhibit D4.

41MR CORDY:  As Your Honour pleases.

42HER HONOUR:  All right, no further orders required to be made?

43MR CORDY:  Yes, Your Honour.

44HER HONOUR:  All right, well that concludes the circuit.  Thank you.

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