Director of Public Prosecutions v Bernath
[2024] VCC 1790
•13 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-01841
Indictment No. P10698474
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM JOHN BERNATH |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2024 | |
DATE OF SENTENCE: | 13 November 2024 | |
CASE MAY BE CITED AS: | DPP v Bernath | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1790 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Burglary – Intentionally causing serious injury – Category 2 offence – Mid-range offending – Plea of guilty following sentence indication hearing – Relevant prior criminal history – Genuine remorse – History of substance abuse – History of mental illness – Verdins principles not engaged – Socially disadvantaged background – Guarded prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Chol v The Queen (2016) 262 A Crim R 455 – Nash v The Queen (2013) 40 VR 134 – Barbaro v The Queen (2012) 226 A Crim R 354 – CD v The Queen [2013] VSCA 94 – Phillips v The Queen (2012) 37 VR 594 – Bugmy v The Queen (2013) 249 CLR 571 – Marrah v The Queen [2014] VSCA 119 – Newton v The King [2023] VSCA 22 – DPP v Herrmann [2021] VSCA 160 – Sabbatucci v The Queen [2021] VSCA 340
Sentence: Total effective sentence of six years imprisonment with a non-parole period of four years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Barron | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Karitzas | Emma Turnbull Lawyers |
HIS HONOUR:
1Adam Bernath, you have pleaded guilty to an indictment containing one charge of burglary (‘Charge 1’)[1] and one charge of intentionally causing serious injury (‘Charge 2’).[2]
[1] Contrary to s 76 of the Crimes Act 1958 (‘CA’).
[2] Contrary to s 16 of the CA.
2The maximum penalty for burglary is 10 years’ imprisonment[3] and the maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[4]
[3] Pursuant to s 76 of the CA.
[4] Pursuant to s 16 of the CA.
The facts
3The prosecution filed a statement of facts and other matters for sentence indication dated 1 July 2024, which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.[5]
[5] Exhibit (‘Ex’) P1.
4On 19 March 2023, you entered the residence of Timothy Murphy without permission and with the intention to steal items located inside. At the time no one else was present at the house.
5At approximately 3:05pm, Mr Murphy returned home with his 17 year-old daughter. Mr Murphy noticed a rear sliding door was open and the lights on the upper level were switched on. Mr Murphy called out, ‘Who’s the bitch in my house who thinks it’s okay to violate someone’s home?’. You yelled back and came to the top of the stairwell. You and Mr Murphy continued to yell at each other and eventually you stated you were going to ‘fuck him up’ before running down the stairs. This conduct gives rise to Charge 1.
6You launched yourself at Mr Murphy. A physical fight ensued. You were both on the ground and punching each other in the head. You got up from the ground and retrieved an ornamental dagger, belonging to Mr Murphy, from a display in the hallway. You held the weapon towards Mr Murphy and said, ‘I’m going to stick you, bitch’. You and Mr Murphy charged at each other. Again, you both landed on the floor. While Mr Murphy was on the floor, you stabbed him in the back six times. This conduct gives rise to Charge 2.
7You attempted to escape out the back of the house. Mr Murphy tried to follow you, so you threw a chair at him. He again attempted to follow, but instead he collapsed as a result of his injuries. His daughter called 000.
Investigation and subsequent matters
8Your fingerprints were located at the residence on an exterior window.
9Dr Maaike Moller of the Victorian Institute of Forensic Medicine prepared a report in relation to Mr Murphy’s injuries. The report noted that he had suffered a tension pneumothorax, which is a life threatening injury. Dr Moller opined:
[Mr Murphy’s] physiological condition was actively deteriorating after the incident, his respiratory distress was severe and his consciousness was decreasing; cardiorespiratory arrest and death was imminent and inevitable without the emergency needle thoracotomy.
10Mr Murphy spent six days in hospital following the incident, four of which were in intensive care.
Victim impact
11Victim Impact Statements (‘VIS’) were prepared by Timothy Murphy,[6] Mr Murphy’s daughter,[7] and Irene Murphy,[8] Mr Murphy’s wife, which were tendered at the plea hearing by the prosecutor.
[6] Ex P2.
[7] Ex P3.
[8] Ex P4.
12Mr Murphy writes he felt violated in his sanctuary and suffers from nightmares and flashbacks of the incident. He now describes himself as fearful, emotional, insecure, paranoid, drained and paralysed. As a result of your offending, he is distrustful of others, uncomfortable being home alone, has trouble falling asleep and feels like he needs to upgrade his home security, at a financial cost, in order to feel safe.
13Mr Murphy’s daughter feels exhausted and defeated as she is constantly thinking about your offending. She writes that her father nearly dying on the staircase at their house will be permanently engraved in her mind. She cannot help but always be alert at home and is enraged that you violated her family and their property. Your offending has traumatised her deeply, leaving her unable to focus on her schooling and feeling empty, dull, lost and broken.
14Irene Murphy has constant knots in her stomach and will always enter her house cautiously and fearfully. Thinking about her ransacked bedroom angers her and makes her feel violated. She is always looking at the backyard or out the front window in case someone is there, and is always anxious when she sees parked cars outside her home. She writes that she will forever be haunted by her daughter’s screams on the phone, and the helplessness she felt in that moment will stay with her for a long time.
Offence seriousness
15Intentionally causing serious injury is a very serious criminal offence as indicated by the maximum penalty of 20 years’ imprisonment. It is a category 2 offence under the Sentencing Act 1991 (‘Sentencing Act’).[9] This means, some irrelevant exceptions aside, a sentence of immediate imprisonment must be imposed for this offence.[10] These two factors indicate the seriousness with which the legislature, on behalf of the Victorian community, views this offence and of Parliament’s intention that a substantial term of imprisonment should normally be imposed.
[9] Sentencing Act 1991 (‘SA’) s 3 definition of ‘category 2 offence’ (c).
[10] SA s 5(2H).
16In Nash v The Queen,[11] Maxwell P identified the following non-exhaustive list of factors sentencing judges routinely take into account when assessing the gravity of an instance of intentionally causing serious injury:[12]
(a) The offender’s proven intent.
(b) The seriousness of the injury actually caused (both immediate and long-term).
(c) The vulnerability of the victim.
(d) Whether a weapon was used.
(e) How long the attack on the victim lasted.
(f) Whether the offender acted alone or in company.
[11] (2013) 40 VR 134 (‘Nash’).
[12] Ibid 137 [10] (Maxwell P). See also Chol v The Queen (2016) 262 A Crim R 455, 458 [5]–[6] (‘Chol’) (Maxwell P, Redlich and Weinberg JJA); DPP v Terrick (2009) 25 VR 457, 466–467 [40]–[41] (‘Terrick’) (Maxwell P, Redlich JA and Robson AJA).
17Referring to this list, the Victoria Court of Appeal in Chol v The Queen[13] opined:
Ordinarily, in our view, the first two factors — the offender’s proven intent and the seriousness of the injury — will be the key indicators of the seriousness of an ICSI offence. The presence of one or more of the factors listed would be likely to aggravate the seriousness of the offending.[14]
[13] (2016) 262 A Crim R 455.
[14] Ibid 458 [7].
18By your plea of guilty to Charge 2 on the indictment, you acknowledge you intended to cause serious injury to Mr Murphy. By repeatedly stabbing him in the back, you not only gave effect to that intention[15] but you placed him at a real and immediate risk of death. I must also take into account the psychological harm you caused to the victims.[16] This is evidenced by the trauma his daughter experienced in witnessing your attack on her father.
[15] Ibid 458 [4]. See also Cedic v The Queen [2011] VSCA 258 [30] (Tate JA, Buchanan and Ashley JJA agreeing).
[16] Pasinis v The Queen [2014] VSCA 97 [54]–[56] (Neave JA and Kyrou AJA).
19Moreover, your attack on Mr Murphy occurred in his home where he had a right to feel safe. You were an intruder whom he was justifiably confronting when you attacked him in a truly horrific manner. Mr Murphy is very lucky to have survived your onslaught. All of this occurred in the presence of his 17-year-old daughter.
20The prosecutor fairly conceded the attack was not premeditated, as you entered the house unarmed, and you spontaneously retrieved a weapon which was to hand to assist in escaping from the scene. While I accept this is so, the fact you did not foresee the precise nature or extent of the injuries you caused to Mr Murphy does not result in your culpability being reduced.[17]
[17] Terrick 467 [41].
21In my opinion, the burglary is a serious enough example of this offence. You entered private premises in daylight with an intent to steal property, presumably in order to support your drug habit. Nonetheless, I accept the offending appears to be haphazard and unplanned, as opposed to an example of highly organised ‘commercial’ offending.[18]
[18] Kotsifas v The Queen [2021] VSCA 368, [47] (Maxwell P and Emerton JA, Kaye JA agreeing).
22The prosecutor submitted your offending conduct, particularly in relation to Charge 2, falls within the mid-range for this type of offending. Your counsel appropriately conceded this was so. I consider your offending conduct in relation to Charge 2 charges, objectively viewed, to be a mid-range example for this type of offending, but nonetheless quite serious. Overall, I consider your moral culpability to be high.
Personal circumstances
23You were assessed on 26 June 2024 by Gina Cidoni, a psychologist engaged by your legal representatives. Ms Cidoni prepared a ‘Psychological Assessment Report’ dated 30 June 2024, which was tendered at the plea hearing by your counsel.[19]
[19] Ex D2.
24You were born in St Albans in March 1987 and are currently 37 years of age. You told Ms Cidoni your parents separated when you were 12 years old because of your father’s infidelity, involvement in drug dealing and physical abuse towards your mother. After the separation you lived with your mother.
25Your childhood was marked by parental separation, domestic violence and your mother’s struggles with bipolar disorder and depression. You characterise your upbringing as stressful owing to witnessing her alcoholism and the frequent violence directed towards her. You also watched over her to prevent self-harm and recalled taking her to the hospital after a suicide attempt when you were 14. Child Protection became involved but you could not recall any major intervention being implemented. In 2015, your mother took her own life. When well, she worked as a cook at an aged care facility and with her sister selling confectionary. She was also involved with notorious boxer ‘Machine Gun’ Charlie for six years during your early adulthood. Currently, Charlie is in the same prison unit as you.
26Ms Cidoni reports you maintain a positive relationship with your father, who has been in and out of jail throughout his life, and your former stepmother. You also have a younger sister but describe your relationship with her as being ‘toxic’. Your sister’s current partner is in prison with you.
27You began couch-surfing in your late teens and experienced homelessness from 2012 to 2014. You lived with your partner in Bacchus Marsh for three years and then in a Ballan caravan park for six years. When this relationship ended you returned to couch-surfing. Before being arrested for the present offending you were living with your stepmother in Braybrook.
28From the age of 14 to 20, you were in your first significant relationship with Jade. From the age of 25 to 31 you were in a relationship with Lucy, which you described as ‘toxic’. You recalled experiencing homelessness together and struggling with drug and alcohol abuse, although you achieved sobriety following a jail term. Your relationship with Lucy became unstable because of frequent arguing. You told Ms Cidoni you felt Lucy distanced you from your family.
29You have been with your current partner, Hailey, for approximately three years and have a son together. You told Ms Cidoni Hailey has struggled with alcoholism and left with your son. At that time, her father obtained a family intervention order protecting her against you. The order expired in March 2024 and you are both in fairly regular contact while Hailey undergoes rehabilitation for alcohol abuse. Upon your release from custody you hope to reunite with Hailey and your son.
Education and employment history
30From Prep to Year 2 you attended Templestowe Primary School. You then attended Sydenham Primary School from Year 3 to Year 6. From Year 7 to Year 9 you went to Niddrie Secondary School before repeating Year 9 at Kensington Secondary School and remaining there until Year 11.
31You frequently failed to attend school so you could care for your mother. Consequently, your academic performance was poor. You were expelled from Niddrie Secondary School for fighting with other students who mocked your mother.
32At the age of 17, you commenced a three-year carpentry apprenticeship but did not complete it. You worked at a tattoo shop when you were 20 years old and then operated your own mobile tattoo business for five years while also working as a furniture removalist. Subsequently, you managed a caravan park in Ballan for several years and worked in a factory prefabricating house frames. In prison you work as a meals billet.
Medical history
33You reported to Ms Cidoni being involved in a motor vehicle accident when you were 14 years old. You stole a car with your friend, crashed the car into a pole, and you were ejected through the window. You did not seek medical attention at the time. At 15 you experienced kidney issues which required a two-day hospital stay. In your early 20s you were stabbed in the hand during a fight, an injury which required day surgery to repair tendons. While homeless, you were stabbed in the face by several individuals during an altercation where you intervened to protect your partner. This resulted in 21 stitches and a visible scar on your left cheek. In 2023, you accidentally shot yourself with a nail gun, leading to infection and surgery.
Mental health
34Ms Cidoni reports that prior to being remanded in custody on the present charges you attended three sessions with a psychologist. You were diagnosed with post-traumatic stress disorder (‘PTSD’), bipolar disorder (‘BD’), depression and anxiety.
35Ms Cidoni administered the Millon Clinical Multiaxial Inventory-IV (‘MCMI IV’) during your assessment. The MCMI-IV is a standardised 195-item self-report questionnaire that assesses the presence of clinical syndromes and personality traits or disorders. Ms Cidoni reports:
He exhibits symptoms of excessive and persistent worry, difficulty controlling this worry, restlessness, fatigue, irritability, muscle tension, and sleep disturbances. He also experiences a depressed mood most of the day, a loss of interest or pleasure in most activities, significant weight changes, insomnia or excessive guilt, diminished ability to think or concentrate, and recurrent thoughts of death. There are signs of manic or hypomanic activity, with increased energy/activity, grandiosity, and periods of decreased need for sleep. Also, irritability, racing thoughts, levels of negative affectivity, and distractibility.
Additionally, he shows signs of distrust and suspicion towards others, believes that others are out to harm or deceive him, holds grudges, and is hypersensitive to criticism. He also re-experiences traumatic events through flashbacks or nightmares, avoids reminders of the trauma, has negative changes in thoughts and mood, and experiences heightened arousal such as difficulty sleeping, irritability, and hypervigilance.
36The Mood Disorder Questionnaire (‘MDQ’), a 15-item self-report screening instrument used to identify clients most likely to have BD, was also administered. You endorsed 13 symptoms out of 13 and indicated several of these symptoms have occurred concurrently. You rated these symptoms as causing you serious problems. The reported symptoms included increased energy, irritability, racing thoughts, high distractibility and hypersexuality. You scored highly on both the positive and negative activation subscales of the MDQ.
37Ms Cidoni concludes that you present with PTSD (commencing with significant childhood trauma), BD and an anxiety disorder.
38In relation to PTSD, Ms Cidoni summarises your symptoms to include ‘intense, disturbing thoughts and feelings related to past traumatic experiences’ often relived through flashbacks or nightmares. You also experience emotional numbness, increased arousal, such as being easily startled, and difficulty sleeping. ‘These symptoms can cause [you] to perceive situations as more threatening than they are, leading to heightened fear and defensive aggression.’ It is difficult for you to ‘remain calm and think rationally, contributing to impulsive and violent reactions.’
39Ms Cidoni’s report elucidates your indicators of BD. During manic episodes you exhibit impulsivity, increased energy, decreased need for sleep, grandiosity, and poor judgement, leading to reckless behaviours. Ms Cidoni writes:
If experiencing a manic episode, he might feel an inflated sense of power or invincibility, leading him to believe he can act without facing consequences. The impulsivity and poor judgement associated with mania can drive the escalation of confrontations into violent actions. Additionally, depressive episodes can result in feelings of hopelessness, irritability, and a lack of interest in life, impairing his ability to consider the long-term consequences of his actions.
40During the offending period, Ms Cidoni opines you were suffering from substance use disorder and a gambling addiction, both of which will be explored later in my sentencing remarks, as well as PTSD and BD. She writes the following:
The heightened arousal and fear from PTSD, coupled with the impulsivity and poor judgment from [BD], created a volatile emotional state.
…
These conditions, compounded by his substance use, would have caused significant cognitive and emotional impairment, affecting his ability to control his actions and fully understand the consequences.
41Regarding mental health treatment or management, you report taking Avanza, an antidepressant, at a dosage of 60mg per day for the past 20 years. You also reported a positive impact from a brief therapeutic intervention prior to your current time in custody. According to Ms Cidoni’s report, your access to specific mental health services has been limited and ‘the lack of regular, comprehensive mental health care, especially during periods of high stress, has limited [your] overall progress.’
Intellectual functioning
42Four subtests of the Weschler Adult Intelligence Scale – Fourth Edition (WAIS-IV) were administered. It was not possible to derive a full scale intelligence quotient; instead, the evaluation focused on more narrow domains of cognitive functioning. According to these results your verbal reasoning abilities are in the low average range and only above 23% of your peers. Your ability to sustain attention, concentrate and exert mental control is also in the low average range and you only performed better than approximately 18% of your peers in this domain.
43Your counsel did not submit that any Verdins principles[20] are engaged in your case, and I find none are.
[20] R v Verdins (2007) 16 VR 269.
Alcohol and substance use
44You were influenced by your peers to start drinking alcohol at the age of 13, however you stopped drinking more than five years ago. You also started using cannabis at 13 years of age and smoked daily until your son was born in 2022. You reported using ketamine and amphetamines in your early 20s and while homeless you used crystal methamphetamine (‘ice’). You ceased using ice approximately ten years ago, although you told Ms Cidoni you relapsed a month before your arrest. You were introduced to the intravenous use of heroin at 18 years of age by one of your father’s ex-partners. For ten years you injected heroin daily.
45Your longest period of abstinence from illicit drugs was from 2015 until one month before being imprisoned for the current offending. In 2020 you completed the methadone program and had a Naltrexone implant. I was told you have remained drug free whilst in custody.
46Ms Cidoni evaluates you as presenting with stimulant use disorder, cannabis use disorder and alcohol use disorder.
47Ms Cidoni opines, it is likely the environment you grew up in normalised substance use and dysfunctional coping mechanisms as ways to manage emotional pain and stress. She writes:
The early onset of alcohol and cannabis use at age 13, influenced by his peers and possibly as a means to escape his difficult home life, set a foundation for substance dependence. The lack of a stable, supportive family environment contributed to his susceptibility to addiction, as he sought solace in drugs and alcohol to cope with unresolved trauma and emotional distress.
48In relation to how your addictions affect your functioning, Ms Cidoni reports:
Substance use further diminished his ability to think clearly and control his behaviour, leading to impaired decision-making and an increased likelihood of engaging in reckless actions. These combined factors significantly affected his ability to control his actions and fully understand the consequences of the period in question.
Gambling history
49Ms Cidoni outlined your history of problematic gambling behaviours, primarily with pokies. Your reliance on the pokies increased significantly after your partner and son left you. Despite telling Ms Cidoni that you have never encountered any trouble due to your gambling habits, she reports your biggest loss ranged between $1000 to $2000 and the last time you gambled was two days before your arrest.
50Ms Cidoni opined you present with a gambling disorder in sustained remission in a controlled environment, which would have also been present at the time of the offending.
Prior criminal history
51Your criminal history comprises a number of driving, property, dishonesty, drug- related and violence offences, dating back to 2006. Your criminal history is relatively extensive and I will only summarise the prior matters relevant to the present offending. However, I have had regard to the entirety of your criminal history in sentencing you.
52On 13 January 2009, you attended the Melbourne Magistrates’ Court in relation to charges of burglary, theft and criminal damage on which you were sentenced to an aggregate fine, without conviction, of $800. On this occasion, you were also fined and had your licence cancelled and disqualified for 10 months in relation to several driving offences.
53On 10 February 2011, you were sentenced to a community based order on a charge of common assault. The order had a duration of 12 months and its conditions included supervision, treatment for alcohol and drug addiction and medical, psychological and/or psychiatric treatment. You did not contravene the order.
54You were sentenced to your first term of imprisonment, being 45 days, on 9 October 2014 at the Melbourne Magistrates’ Court. This sentence was in relation to several charges including possess an offensive weapon on court premises, possess controlled weapon without excuse, attempted theft from a motor vehicle, theft, obtain property by deception, shopsteal, failure to answer bail and cause false report to be made to police. You were also convicted and fined for other driving offences.
55On 5 February 2015, you appeared at the Melbourne County Court in relation to one charge of armed robbery. You were sentenced to six months’ imprisonment followed by a two-year community correction order. The conditions of the order included 200 hours of unpaid community work, supervision and assessment and treatment as directed by the Regional Manager.
56You were last sentenced on 19 February 2015 at the Melbourne Magistrates’ Court to a concurrent three-month term of imprisonment, wholly suspended, for theft of a motor vehicle and charges of going equipped to steal. Your licence was suspended for one month and you were also fined $300, with conviction, for driving a motor vehicle without a licence.
Risk assessment
57Ms Cidoni conducted a risk assessment of you using the Violence Risk Appraisal Guide (‘VRAG’). The variables considered in the VRAG include childhood history, adult adjustment, referral offence details and circumstances, and assessment results. Using the VRAG, your total score of 20 was calculated and is assigned to Risk Category 7. Ms Cidoni states that approximately 55% of those in your risk category reoffend violently within an average of seven years after release and 64% within an average of 10 years.
58The VRAG highlighted your risk factors as being childhood maladjustment, family instability, your mother’s poor mental wellbeing, tumultuous relationships, lack of access to your son, low cognitive functioning, underlying mental health concerns, substance abuse, criminal priors and the current offending.
Mitigating circumstances
59You pleaded guilty to the present charges on 11 July 2024 following a sentence indication hearing conducted on 4 July 2024.
60Although your pleas were not entered at the earliest forensically reasonable opportunity, they have significant utilitarian benefit and indicate an acceptance by you of responsibility for your offending conduct. They also indicate your willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses, particularly Mr Murphy and his young daughter, to give evidence.
Remorse
61I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct. As Winneke P observed in R v Cooper,[21] ‘[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [himself]’.[22] True remorse is a question of fact and is determined on the balance of probabilities.[23] An offender must satisfy the court that there is ‘genuine penitence and contrition and a desire to atone’.[24] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[25]
[21] (1998) 103 A Crim R 51 (‘Cooper’).
[22] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
[23] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[24] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[25] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
62In CD v The Queen,[26] Harper JA, with whom Buchanan JA agreed, quoted his earlier observations in Phillips v The Queen,[27] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[28]
[26] [2013] VSCA 95 [36].
[27] (2012) 37 VR 594, 621 [101].
[28] Ibid [97]–[101].
63I have had regard to the letter of apology you wrote to the Court[29] which I consider expresses your genuine emotions. According to your letter, your legal representatives read the victim impact statements to you and you acknowledge you scared your victims and your actions have impacted them physically and emotionally. You write you did not intend to hurt anybody, but you are disgusted in yourself for the pain you have caused. You say you are sorry ‘with all [your] heart’ and consider your actions to be ‘thoughtless’. You wish you could change what occurred and you hope your apology is accepted as sincere and can help your victims in some way. You repeat many times how sorry you are for your horrible actions and how this has affected your victims.
[29] Dated 8 October 2024 (Ex D4).
64On the basis of these sentiments, I find you have shown victim empathy and demonstrated true contrition and remorse for your offending conduct.
Rehabilitation
65You have used your time whilst on remand profitably. At the plea hearing, your counsel provided me with a bundle of certificates that attest to your successful completion of three modules of the Atlas Remand Program and the Tuning Into Respectful Relationships course, consisting of two three-hour modules focused on knowledge, awareness and skill enhancement.[30] You are currently working as a meals billet, a responsible and trusted position within the prison.
[30] Ex D3.
66Despite the progress you have made whilst on remand, which is to be commended and encouraged, I assess your prospects of rehabilitation as being somewhat guarded. Given the nature of the present offending and your relevant prior criminal history, much will depend on your ability to disassociate from your former criminal behaviours and develop a more pro-social attitude and lifestyle. Your partner and child should be strong protective factors in this regard.
Application of Bugmy principles
67Your counsel did not wholeheartedly embrace the general principles adumbrated by the High Court of Australia in Bugmy v The Queen[31] as being engaged in your case. However, I consider the fact you suffered a degree of childhood trauma and deprivation means those principles are relevant to some extent.
[31] (2013) 249 CLR 571 (‘Bugmy’).
68In Marrah v The Queen (‘Marrah’),[32] Redlich and Tate JJA confirmed the relevance of a disadvantaged background when their Honours observed:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[33]
[32] [2014] VSCA 119 (‘Marrah’).
[33] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–89 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
69Importantly, their Honours held that when sentencing an offender the court should not consider that an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[34] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[35]
[34] Ibid.
[35] Ibid.
70In Sabbatucci v The Queen,[36] the Victorian Court of Appeal referred to the principles in Bugmy and explained:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[37]
[36] [2021] VSCA 340 (‘Sabbatucci’).
[37] Ibid [6] (Maxwell P and Emerton JA). See also Newton (a pseudonym) v The King [2023] VSCA 22 [36]–[38] (Beach and Macaulay JJA).
71That Court further observed in DPP v Herrmann:[38]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[39]
[38] [2021] VSCA 160.
[39] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
72In applying the principles in Bugmy to this case, I do not need to find the disadvantage you suffered as a child was ‘profound’. In Sabbatucci, the Victorian Court of Appeal said that the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[40] According to Sabbatucci, coming to this conclusion does not depend on the court being satisfied that the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[41]
[40] Sabbatucci [22].
[41] Ibid.
73Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability. Nonetheless, these complex factors mean I must moderate to some extent the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you. They also inform the weight I give to specific deterrence and protection of the community in your case.
Application of sentencing principles
74I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[42] and DPP (Vic) v Dalgliesh (a Pseudonym)[43] and the Victorian Court of Appeal decisions in DPP v Zhuang[44] and DPP (Cth) v Thomas.[45]
[42] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[43] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[44] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[45] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
75While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[46]
[46] See Dalgliesh HCA.
76Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences of burglary and intentionally causing serious injury and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from so-called ‘comparable cases’, I have sought to do so in your case.
77As I noted earlier, intentionally causing serious injury is a ‘Category 2’ offence as defined in the Sentencing Act.[47] Accordingly, a court must impose a sentence of imprisonment to be immediately served unless the exceptions specified in s 5(2H) of the Act apply. Your counsel did not submit any of the exceptions apply in your case.
[47] See SA s 3(1) definition of ‘category 2 offence’ paragraph (c).
78The basic purposes for which a court may impose a sentence are just punishment, deterrence – both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the impact of the offence on the victims, and your personal circumstances.
79I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
80Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences, albeit sensibly moderated as I earlier discussed. Moreover, I consider protection of the community and specific deterrence must be given real weight, while also being sensibly moderated. As I observed earlier, I assess your prospects of rehabilitation as being guarded.
81It was not suggested that anything other than sentences of imprisonment with a non-parole period fixed are appropriate dispositions in this case.
82Mr Bernath,
(a) On the charge of burglary (Charge 1) you are convicted and sentenced to imprisonment for 2 years.
(b) On the charge of intentionally causing serious injury (Charge 2) you are convicted and sentenced to imprisonment for 5 years.
(c) I order that 1 year of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
(d) This makes a total effective sentence of imprisonment for 6 years.
(e) I order you serve a minimum of 4 years’ imprisonment before being eligible for parole.
(f) I declare 593 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
(g) Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 7 years’ and 6 months’ imprisonment with a non-parole period of 5 years.
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