Director of Public Prosecutions v Bersey

[2023] VCC 2345

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01469
CR-23-01728
CR-23-01729

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY BERSEY

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF SENTENCE:	11 December 2023
CASE MAY BE CITED AS:	DPP v Bersey
MEDIUM NEUTRAL CITATION:	[2023] VCC 2345

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Guilty Plea – Persistent Breach of Family Violence Intervention Order – Make threat to kill – Make threat to destroy property – possession of a drug of dependence – breach conduct condition of bail – commit indictable offence whilst on bail

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  Total effective sentence of four years and two months' imprisonment. Non-parole period of three years.

6AAA - six years' imprisonment with a non-parole period of four and a half years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F. Holmes	Office of Public Prosecutions
For the Accused	Mr K. McLaughlin	Nelson Brown Legal

HER HONOUR:

1You have pleaded guilty to three charges of persistent breach of a family violence intervention order, five charges of making a threat to kill, one of making a threat to destroy property, one charge of possession of a drug of dependence, two charges of breaching a conduct condition of bail and two charges of committing an indictable offence on bail.

2The offending occurred between 2 February and 8 June 2023.  You had been in a relationship with Aileen Forbes[1] for around 10 years, at that time, and had two children with her.  Sadly, your son had died in childbirth, but your daughter is now six years old.

[1]        A pseudonym

3A final family violence intervention order was made on 17 June 2022, where Aileen Forbes and your daughter were the protected family members.  Under this order you were not permitted to contact either Ms Forbes or your daughter, unless permitted to do so by Family Court Orders.   Before the family violence intervention order expired it was renewed on 6 June 2023, and you were served with it on 8 June 2023.

Summary of Offending

CR-23-01469 - Indictment Charges 1 to 8, Summary Charge 19

4These offences occurred between 2 February 2023 and 24 March 2023.  At the start of that period you were on bail for non-family violence charges, bailed to appear at court on 28 February 2023. 

5Charge 1 relates to a persistent breach by you of the family violence intervention order.  Between 2 February 2023 and 17 February 2023, you contacted Ms Forbes multiple times. Call charge records show that between 4 and 16 February 2023 you contacted her daily, with the total number of contacts by you in the range of 935.[2] Charge 1 relates to 28 voicemail messages left by you on Ms Forbes's mobile phone during the charge period.  These messages are not all set out in the Prosecution Opening, but one left at around 1.37 am on 3 February 2023 reads as transcribed: 'You filthy fucking sex offender cunt. I'll cut your limbs off cunt'.[3]

[2]Summary of Prosecution Opening [34]

[3]Summary of Prosecution Opening  [33h]

6Within that same time frame, you also made a number of threats to Ms Forbes, which are the basis of Charges 2 and 4 and 7.

7On 8 February you set up a group chat on Facebook Messenger.  You included Ms Forbes and her friend Ruby Humphrey[4] in that group.  At 7.57 am you began to send multiple messages in that group chat.  You sent 14 messages, in quick succession, accusing Ms Forbes and Ms Humphrey of being 'paedophile rats' and saying that they both need to be killed. Ms Forbes left the group chat.

[4]A pseudonym

8At 9.41 am on 8 February you sent a message to Ms Humphrey that included a threat to kill her.  You wrote 'Dead rat' ... 'I'll kill you and your coon family'.  At 3.16 pm you sent another message which read 'Better hope they find me before I find any of you pedophiles (sic)' ... 'Because I WILL kill you'. That relates to Charge 3 and Ms Humphrey reported your conduct to the police that day.

9Also on 8 February 2023 you left five voice messages for Ms Forbes which individually and together amounted to threats to kill her (Charge 2).  These messages have been transcribed in the Opening as follows:[5]

§At approximately 7:28 AM: “You wanna fuck my life, you ’re a cunt you are gonna die, I’m gonna take your fucking life cunt I will cut your fucking head off’

§At approximately 8:11 AM: “l am gonna come and kill you, I swear on my fucking life, I swear on you’re gunna be murdered, I’m going to murder, I’m going to kill you cunt, I’m going to take your fucking life, you dead fucking paedophile rat and dog”’

§At approximately 11:20 AM: “I should of killed you 10 fucking years ago dog you made me waist all this fucking time I spent all this time in jail I could have been getting out of jail now if I just fucking killed you cunt. I should of fucking killed you already cunt I’m not gonna make the same fucking mistake twice cunt. I’m gonna kill every single one of you paedophile fucking rat dog fucking coon.... I’m gonna fucking kill myself at the end of it”

§At 2:50 PM: “I’m comin to fuckin kill you dog”.

§At 3:04 PM: "You fuckin dog. I’m gonna fuckin kill you cunt. I’ll run through every fuckin friend and family member’s house you fuckin have cunt”

[5]Summary of Prosecution Opening [33a] – [33e]

10Later that day, at 3.12 pm, you left another voicemail message for Ms Forbes which has been transcribed as

“If I don’t fuckin see you very fuckin soon cunt, so I can fuckin kill ya, I’m gonna bum Ruby’s fuckin house down cunt. Fuckin test me cunt and see if I won’t. You fuckin take everything for yourself I’m gonna kill ya, I’m gonna fuckin kill you cunt and I will kill Ruby if I get to her before you cunt.... “I am gonna kill you cunt... I am gonna burn Ruby’s house down”[6]

[6]Summary of Prosecution Opening [33f]

11Thus, on 8 February not only did you again threaten to kill Ms Forbes, you also made a threat to burn down Ms Humphrey' house which gave rise to Charge 4.

12On 14 February you left two voicemail messages for Ms Forbes, the first at 4.06 pm and then the next at 4.31 pm.  The first has been transcribed to read 'I’ll kill you cunt. I’ll put a knife in your throat cunt. I’ll run you off the road cunt' and the second as 'Sex offenders around our kids cunt. You’re fucking dead'[7]  That gives rise to Charge 5.

[7]Summary of Prosecution Opening [33i], [33j]

13On 15 February 2023 you sent a message to Ms Forbes’s mother, which read 'if Trina ever goes near [A] again I'll kill her I swear on [A] I swear on Kobe she is a fucking paedophile and her dirty coon boyfriend and her will die if either of them go anywhere fucking near [A] that's a promise'.  Kobe is the name of your son who died at birth.  This message is the basis of Charge 6, making a threat to Sallie Forbes[8], to kill her daughter Aileen Forbes.  Mrs Forbes reported your conduct to the police that day. 

[8]A pseudonym

14Your commission of the offence of making a threat to kill on that day is the basis of Summary Charge 19, committing an indictable offence whilst on bail.

15The next day, 16 February 2023 at around 12:01 pm, you left another message for Ms Forbes which has been transcribed as 'You dirty fucking sick twisted cunt. I'll fucking cut your fat insides out like fish guts and turn you fucking inside out like a squid calamari'.[9]  That gives rise to Charge 7.

[9]Summary of Prosecution Opening [33k]

16Acting on the reports by Ms Forbes, her mother and Ms Humphrey, the police arrested you on 17 February 2023 at your work site.  When you were arrested you had in your possession approximately half a gram of methylamphetamine.  That gives rise to Charge 8.

17When you were interviewed you admitted the offending, saying that you were trying to provoke a response from Ms Forbes.[10]

[10]Summary of Prosecution Opening [38]

18You were bailed on that day by a Magistrate.  The conditions of your bail included that you were to live at your mother's home, abide by a curfew, and sign on at a police station daily.

CR-23-01728 – Indictment Charge 9, Summary Charges 1, 5 &12

19You breached the conditions of your bail on 27 February 2023 when you failed to sign on at the local police station.  This gives rise to Summary Charge 1.

20On 21 March 2023 police went to your mother's home, where you were supposed to be, at 12.40 am.  You did not come to the door because you were not there.  Your mother told the police you had not stayed at her home since around 14 February 2023.  Your breach of the bail condition on that occasion gives rise to Summary Charge 5.

21Phone call charge records show that between 21 and 27 March you sent 119 text messages to Ms Forbes.  This conduct gives rise to Charge 9 on the Indictment, and also to Summary Charge 12 – committing an indictable offence whilst on bail, the date of that charge being 24 March 2023.  Ms Forbes did not get those messages as she had blocked your number on her phone.  No detail of the content has been provided to me in the Opening.

22A warrant was issued for your arrest on 27 March 2023, when you did not attend court for a Judicial Monitoring hearing.  On 3 April 2023 you again failed to sign on for your bail at the police station.  I note that that is not a charged act.

23You were arrested on 5 April 2023, at Mooroolbark, when a warrant was executed at a house, in an unrelated investigation.  You fled, jumping the back fence and were arrested next door. 

24You were not interviewed because you had been found by a medical doctor to be unfit to be interviewed.

CR-23-01469 – Summary Charge 19

CR-23-01729 - Indictment Charge 10

25Whilst on remand you continued to contact Ms Forbes and your daughter, in breach of the family violence intervention order.  Charge 10 is based upon five calls.  On 20, 22, 23, and 31 May you spoke to your daughter by phone and on 8 June you spoke to her and to Ms Forbes.  The last call was made the same day that the renewed family violence intervention order was served on you.

Victim Impact

26Ms Humphrey made a victim impact statement.  She writes that your behaviour made her feel angry and scared.  She has anxiety and your conduct has negatively impacted her social life and relationships.  She worries about her safety and that of her son.

Personal Circumstances

Background  

27You were born in January 1994 and are now 29 years old. Your mother and father separated when you were five, and whilst your father remained in your life, your mother was your main caregiver. You describe her as a very hard worker and your main support. She has remained supportive of you throughout all of your offending and was present in court during your plea before me, as was your father. You have two siblings, a sister and a brother, and you report a good relationship with your sister stating that she is your main source of emotional support. You have said that none of your family members are involved in criminal activity, nor have they used substances, and you have not experienced any form of abuse.

28You report that your schooling was largely affected by your ADHD and autism spectrum disorder (ASD). You had difficulties making friends because you felt different to others, which led to you refusing to take medication prescribed for your ADHD. You also refused to attend a specialist school or engage with any interventions, as you did not perceive that your behaviour was a problem.  You were often reactive and disruptive in class and reported that you had difficulty recognising authority in school. You ultimately finished your schooling in Year 10 Term 3.

29When you were 15 you started staying away from home, because you wanted to avoid your mother when you started using drugs.  This pattern of avoiding your mother when your drug use increases has continued into your adulthood.

30Once you stopped school you started an apprenticeship in carpentry and then in plumbing but you did not complete either. You started working as a roof tiler but you did not enjoy it so you left that job after six months. You then worked at a factory for two years before being sentenced to a period of imprisonment. After you were released, you got a job at another factory as a project manager, but repeated periods in custody meant that you were not able to maintain that job.

31At the time of your arrest on 17 February 2023 you were working as a roof tiler.

32You first met the victim in these proceedings, Ms Forbes, at a friend's house and started a relationship when you were 17. You moved in with her when you were 19. You said that when you were first together, you were not invested in the relationship and you would frequently be unfaithful.  Despite this, Ms Forbes did not give up on you, but by the time you yourself became invested in your relationship with her, it had become unhealthy.

33You and Ms Forbes had an on and off again relationship for many years. You have one daughter together, who is now seven years old. You reported having a good relationship with your daughter, noting that she would write you letters in prison and that you had similar interests. As I have already noted, you had a son with Ms Forbes who passed during childbirth in October 2020. You were unable to support Ms Forbes during this time because you were in custody. 

34Dr Dawson, a psychologist who assessed you for the plea hearing reported as follows:[11]

In relation to these current charges, Mr Bersey described little memory of the content of the messages, but described shame in this repeated behaviour. As stated above, he denied a wish to harm Ms Forbes and considered that his contact was to gain her attention, escalating in severity if he felt ignored. He did not consider this to be particularly effective, and asserted that he was 'very drug affected' and unable to engage in rational thought processes or decision-making at the time.

[11]Dr Dawson [62]

Mental Health

35You report being diagnosed with what was then called Asperger's Syndrome, as a child.  You could not perceive or empathise with other's emotions.  You were diagnosed with ADHD at age six.  As I have noted you refused to take medication for the ADHD and you rejected assistance in respect to any of your issues when you were a child.

36You told Dr Dawson that in 2022 you were re-diagnosed with ADHD, apparently when at the Cottage, and you were re-commenced on medication for that condition.  When you left the Cottage, however, you did not renew the prescription, and you 'fell back into old habits'[12] which I understood to mean drug use.  You told Dr Dawson that 'the supports were right in front of me, but when I was on my own, I did not seek it for myself.'[13]

[12]Dr Dawson [42]

[13]Ibid.

37You have seen the medical staff whilst in custody and have been feeling anxious and depressed.  You have not been able to access medication for your ADHD, although you are prescribed medication for anxiety and depression. 

38You say that the Autism Spectrum Disorder means that you have difficulty perceiving others emotions and expressions, you lack empathy and you are troubled by being touched by other people.  You also have difficulty with strong sensory inputs, in particular, light. 

39You report frequently thinking about suicide, but that you have no intention or plan of taking your own life.

40Dr Dawson considered that you present with a persistent Major Depressive Disorder of moderate severity, generalised anxiety disorder, Post Traumatic Stress Disorder and substance use disorder.  She also considered you had some personality disorder traits including melancholic and avoidant traits.  As I have already noted, you also suffer from ADHD and Autism Spectrum Disorder.

Drugs and Alcohol

41You report smoking Cannabis from the age of 14, and then moving on to alcohol.  You tried various drugs as a teen and into your twenties. When you had a powerful adverse reaction to a particular hallucinogen you ceased using Cannabis.  You continued to abuse alcohol, Xanax and methylamphetamine.  You accept that you were an alcoholic when you were around 24 years old. 

42After a period of incarceration you changed from abusing alcohol to GHB, because it did not make you put on weight.  At the time of this offending you were using drugs, particularly methylamphetamine.

43You think that your drug use is the root of your troubles.  You found your time in the Cottage residential rehabilitation program in 2022 to be helpful, but once you left there you failed to carry through with any of the skills or progress you had made.  You have a self-defeating attitude which is focussed not on your own life, but on other's perceptions of you.[14]

[14]Dr Dawson [52], [53]

44Dr Dawson considers that you are at the planning stage of addressing your substance abuse.[15]  She wrote 'Mr Bersey displayed limitations in his insight into his own emotional functioning and factors relating to his substance use and offending.'[16]

[15]Dr Dawson [54]

[16]Dr Dawson [69]

Criminal Priors

45You have an extensive and relevant criminal history.  You were first before a court for breaching a family violence intervention order in December 2014.  You received a 12 month CCO which you then breached, and then you were sentenced to a total sentence of 3 months' imprisonment.

46You were again before a court in February 2018 for charges of possession of cannabis, persistently breaching a family violence intervention order, damaging property and threatening to distribute intimate images.  You received a sentence of 8 months to be followed by a CCO, but you appealed that sentence and the CCO condition was removed.

47In November 2022 you were sentenced to 232 days' imprisonment, which was time served, to be followed by a community corrections order with work hours, and rehabilitation conditions.  The charges were breaching a family violence intervention order, stalking, threatening to distribute intimate images, persistent breach of family violence intervention order, damaging property and making a threat to kill.

48You also have prior convictions for drug charges, which I will not detail.

Impact of Mental Health on Offending

49It was submitted on the plea that your ADHD and Autism Spectrum Disorder impacted your ability to exercise sound judgment and thus reduced, to a degree, your culpability.

50Dr Dawson in her report said of Autism Spectrum Disorder:[17]

Whilst individuals with ASD can exhibit socially inappropriate behaviours, they are rarely intentional and often stem from a lack of understanding of other people and social situations. Anger and aggression in ASD occur when a person feels overwhelmed by multiple tasks, sensory stimulation, disruption of routines, build-up of stress and, more specifically in Mr Bersey’s case, by the perception of other people’s (Ms Forbes’s) rejection.

[17]Dr Dawson [100]

51In respect to your ADHD, I accept that this disorder can cause risk taking, impulsivity, mood instability and lowered self-control and coping skills, and it can increase the risk of substance abuse.  Dr Dawson writes that the traits associated with ADHD are consistent with your repeated disregard for the court orders, and repeated aggressive behaviours. 

52Dr Dawson notes that your mental health issues were likely a factor behind your continuing drug abuse.  The offending was precipitated by both your underlying conditions and your drug abuse at the time.[18] 

[18]Dr Dawson [103]-[109]

53You have been offered treatment for your ADHD in the past.  You have been repeatedly before the courts for similar offending and have chosen not to take the sentences, including custody, as wake-up calls.  Despite past offending of a similar nature, you continued to take drugs and engage in this type of offending again and again.

54Whilst I accept that your ability to exercise judgment and self-control were affected by your mental state and various disorders, the impact of your voluntary drug consumption cannot be disentangled.  I do not consider that your culpability is reduced by reason of your mental state.

Prospects of Rehabilitation & Specific Deterrence

55Dr Dawson assessed you as presenting a high risk of further offending.  This assessment took into account a number of factors personal to you.[19] 

[19]Dr Dawson [91]

56I agree with Dr Dawson's assessment of your risk of further offending.  Unless you address your substance abuse, which will involve also dealing with some of your mental health issues and learning to manage your ADHD and ASD better, your prospects of rehabilitation will be poor.

57Specific deterrence has a significant role in sentencing you. Whilst custody has not deterred you in the past from this type of conduct, a lesser sentence would have less effect. 

Matters raised in mitigation

58I take into account the following matters on your behalf:

Plea of Guilty

(a)   You pleaded guilty to these matters at an early stage.  In respect to the original charges from February you indicated you would plead guilty in early May 2023.  There were then a number of applications in the Magistrates' Court for summary jurisdiction and to enter the Drug Court, and then you were committed to this court on 17 August 2023.  The other two matters resolved very quickly after you were charged on 15 August 2023, and they were joined with the first matter for plea.

(b)   You are thus entitled to a real discount in sentence for the utilitarian benefits of your pleas of guilty.  Not only have you saved Ms Forbes, her mother and her friend the stress of giving evidence, but there has been no need for a trial.  Given the timing of your plea there is a slight increase in mitigation by reason of the lingering effects of the pandemic on the court lists.

Remorse

(c)   I accept that your pleas and statements to Dr Dawson indicate some remorse.  You told Dr Dawson that you were ashamed of your behaviour;

Impact of Mental State

(d)   I accept that your ADHD and Autism Spectrum Disorder will make your time in custody somewhat more difficult than for a person without those issues, and I mitigate your sentence to a small degree on that basis

Totality

(e)   You have pleaded guilty to a number of charges, some of which occurred in the same time period.  I will take care to ensure that any orders for cumulation have regard to the overlapping conduct and offending, and to ensure that the total sentence reflects the totality of your offending, but no more.

Offence Gravity

59As your counsel accepted, offending of this type is inherently serious.  The content of the threats, and some of the messages, was rightly described by your lawyer as vile.  Not only were strongly offensive words used, and racial slurs, but in some an actual method of killing was described.  Furthermore, Charge 2 covers multiple messages left by you that day, increasing the gravity of that charge.

60I accept that the threats were not made face-to-face, and thus would not have had the same impact if they had been made in the presence of the person threatened.  Nevertheless, Ms Forbes, her mother and Ms Humphrey were sufficiently concerned to report your offending to the police.

61You told Dr Dawson that at school you would behave badly as a way to get attention.[20]  Your explanation to the police when you were interviewed in February was that you were trying to provoke a response from Ms Forbes.  Even accepting that your ADHD and Autism Spectrum Disorder impact the way that you think and behave towards others, for the reasons I have explained I do not accept that those conditions reduce your culpability. 

[20]Dr Dawson [29]

62Repeatedly calling and messaging Ms Forbes in breach of the order demonstrates a significant lack of regard for your obligations to comply with the court order.  You have a history of similar behaviour.  You chose to put your own desires before anyone else's and in so doing have demonstrated contempt for the court orders made and the victims of your offending.

Current Sentencing Practice

Sentences

63General deterrence, denunciation, just punishment and protection of the community are important factors in sentencing for offending of this type.  People must understand that regardless of their own wishes a family violence intervention order must be obeyed. 

64Furthermore, your history means that specific deterrence is an importance aspect of the sentencing discretion. 

65I note that the charges of making a threat to kill are serious violent offences under the Sentencing Act 1991. You have previously been sentenced to terms of imprisonment on charges of making a threat to kill and thus on the charges before me you are to sentenced as a serious violent offender. This means that I must treat protection of the community as the principal purpose for which the sentence is to be imposed. It was not suggested that I should impose a disproportionate sentence.

66The other impact of the serious offender provisions is that there is a presumption of cumulation of sentences, subject to the application of the principle of totality.  The sentences are as follows:

Charge	Maximum	Sentence	Cumulation
1 Persistent Contravention of FVIO	5 years	12 months	3m
2 Making a Threat to kill	10 years	2 years 6 months	base
3 Making a Threat to kill	10 years	1 year	3m
4 Making a Threat to destroy property	5 years	9 months	3m
5 Making a Threat to kill	10 years	12 months	3m
6 Making a Threat to kill	10 years	6 months	2m
7 Making a Threat to kill	10 years	6 months	2m
8 Possess drug of dependence	5 years	1m	-
9 Persistent Contravention of FVIO	5 years	12 m	2m
10 Persistent Contravention of FVIO	5 years	6 m	2m
Summary Charge 1 Contravene conduct condition of bail	3 months/3 PU	1 m	-
Summary Charge 5 Contravene conduct condition of bail	3 months/3 PU	1m	-
Summary Charge 12 Commit indictable offence on bail	3 months/3 PU	1m	-
Summary Charge 19 Commit indictable offence on bail	3 months/3 PU	1m	-

67By my calculations that leads to a total effective sentence of four years and two months' imprisonment.  I set a non-parole period of three years.

68Pursuant to s18 of the Sentencing Act I declare that you have already served 249 days of pre-sentence detention.

69Pursuant to s6AAA, I state that if you had not pleaded guilty I would have sentenced you to six years' imprisonment with a non-parole period of four and a half years.

70I state that you have been sentenced as a serious violent offender on Charges 2, 3, 5, 6 and 7.

71As I understand it there are some forfeiture and disposal orders; are they consented to?

72MR McLAUGHLIN:  Yes, Your Honour.

73HER HONOUR:  I will make those orders.  The matter is now adjourned.

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