Director of Public Prosecutions v Bertoni and Ford
[2015] VCC 1443
•9 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-00944
CR-15-01040
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY BERTONI & JOHN FORD |
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JUDGE: | His Honour Judge Mullaly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2015 | |
DATE OF SENTENCE: | 9 October 2015 | |
CASE MAY BE CITED AS: | DPP v Bertoni & Ford | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1443 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A. Steven | Office of Public Prosecutions |
| of Public Prosecutions | ||
| For Accused Bertoni | Mr D. Cronin | Victoria Legal Aid |
| For Accused Ford | Mr S. Gardner | Stary Norton Halphen |
HIS HONOUR:
1 John Ford and Ashley Bertoni, on 9 January 2015 you were together at Mr Ford's premises in Thrush Street, Norlane. You were using methamphetamine, or ice, together. Around 7 am, you both decided to go to a house in Alkira Avenue, Norlane, about a kilometre away. You wanted to get money or property as you believed that one of the occupants of that house owed some money to you.
2 You well knew that in addition to a significant number of adults who lived there there was also a number of children there who were quite young. As it turned out, they were under the age of ten.
3 You went into the house intending to steal what you could. When you entered the house as trespassers, all the occupants were asleep and thus more vulnerable.
4 You got into the premises and started searching around. Your searching around the premises woke one of the victims in the matter, a man who knew you, Mr Bertoni. You rushed at him and punched him in the face. You demanded money, drugs and tattoo equipment from him. You then told him to go back to his room and he would not get hurt.
5 All that noise woke another occupant, a female that was living in the house with her three young children. She got up and confronted you, Mr Ford, and asked what was going on. You, Mr Ford, threatened to slash her throat and kill her children. These were frightening and chilling threats. You then added to your verbal threats by then punching the victim in the face, causing her a bloody nose.
6 This victim went to the bathroom to clean her face. She saw you, Mr Bertoni, going through her belongings in the lounge. The pair of you continued searching and gathering items. This took you into the children's room. The female victim had gone there to stop you men going into the children's room. You, Ford, responded to her trying to protect her children by telling her to "get the fuck back to where she belonged" and then punching her in the face. She was pleading with you to leave. You, Ford, again punched her to the head and the threats and insults continued.
7 The pair of you continued to ransack the property.
8 Eventually all the residents were woken and threatened by you two men. You, Mr Bertoni, brandished a multi tool with the blade out at the occupants of the house, threatening them whilst taking items such as mobile phones so that they could not call the police.
9 You, Mr Bertoni, threatened to line everyone up in the backyard and shoot them, including the children, if drugs and money were not handed over.
10 This rampage continued for at least an hour. At some stage a wheelie bin was gathered and loaded up with various items of property, including household and electrical equipment which was later given a value of around $3,000.
11 This property, together with a pram also containing property, was then wheeled up the road from this residence to another place where a previous partner of yours, Mr Ford, resided. This previous partner of yours then opened the door. Once inside this house, you, Mr Ford, started to question your previous girlfriend and her half-sister who was there about drugs that had been left. You became aggressive and punched both of these women in the head. They were able to leave and then waved down a police car who was heading to answer the call that had been made from the occupants of the Alkira Avenue address.
12 Both you men were arrested and taken to the police station. Each of you blamed the other for what had occurred.
13 The female, in a victim impact statement, spoke of the adverse effect upon her, in particular she speaks of the effect on her children and her ability to have a relationship with the children.
14 This violent and confrontational aggravated burglary and the thefts of some significant amounts of property, along with the threats and assaults amount to very serious offending. Matters making this a grave example of the always serious crime of aggravated burglary were the children were present. A frightening weapon was brought and displayed, though you, Mr Ford, were not aware that Bertoni had the weapon.
15 There were two of you, both powerful men, acting in company. Also making the crime more serious was the very long time that you remained in the house terrorising the occupants, ransacking their property and filling, as it turned out, the wheelie bin full of property and the pram and simply walking away with it.
16 The punches inflicted upon the victims were gratuitous and violent. The continuation of your violence, Mr Ford, at the second residence reveals a real propensity to turn upon women, punching them when you wish to make them frightened or to make a point.
17 You, Mr Ford, have pleaded guilty to aggravated burglary with the element that you knew or were reckless as to people being present. Also you have pleaded guilty to the theft, threats to kill, and two charges of intentionally causing injury and two summary offences of an unlawful assault and committing an offence while on bail.
18 You, Mr Bertoni, have pleaded guilty to aggravated burglary with the dual elements of knowledge or recklessness as to people being present and carrying the offensive weapon. You also pleaded guilty to the theft and threat to kill and of an unlawful assault on the male, that right at the outset.
19 The Court of Appeal in this State has made it clear in important judgments that the penalties to be imposed for aggravated burglaries that involve violence and threats must reflect the very long maximum term for this offence. To that end the Court said in Hogarth and other cases that current sentencing practices do not operate to constrain sentencing judges as might ordinarily be the case. By the definition of aggravated burglary adopted in Hogarth and in other such cases, such as Meyers, this was a form - that is your aggravated burglary - was a form of confrontational aggravated burglary, being stealing of property because of an alleged debt.
20 Sentences must in such cases, in practical terms, act as a deterrent to you men and generally to others who might be like minded. The punishment must denounce the community's abhorrence of these dreadful attacks on people in their own homes. Such crimes have a corrosive effect generally as people feel less safe in their home because of a sense that these crimes are prevalent. Consequently significant terms of imprisonment await those who commit such crimes.
21 There are aspects of your offending as I set out that lead to the conclusion that it is a serious example of the offences that you have pleaded guilty to, in particular the aggravated burglary and the threats to kill which involved threats to adults that not only they but their children would be killed.
22 Each of you men have pleaded guilty and your pleas of guilty will be acknowledged and you will receive less punishment than otherwise would be the case had you pleaded not guilty and been found guilty of these offences.
23 Your pleas of guilty were early ones and no victim has been at risk of being re-traumatised by having to give evidence. The benefits to you will recognise these factors. I take your pleas of guilty as expressions of remorse.
24 Little if anything was raised by either of your counsel to downplay the seriousness of your crimes. That said, I am mindful that there was little planning involved and the relatively spontaneous but dreadful decision to go to the house was made by minds, your minds, addled by drugs.
25 I take into account that you, Mr Bertoni, took and brandished a weapon but you, Mr Ford, are not charged with the element of aggravated burglary of having a weapon.
26 However you, Mr Ford, committed the offences of intentionally causing injury and punching the female victim a number of times to the head. The injuries she suffered were not long lasting and I keep that in mind.
27 Both of you, as I have said, have made dreadful threats.
28 In the end, the total culpability of each of you is on balance about the same, but not identical.
29 As to your personal circumstances, dealing first with you, Mr Ford, you are now 35. You have a long and troubling criminal history involving many court appearances in the Magistrates' Court since you were in your late teens. There have been in excess, to my count, 30 court appearances with many, many offences and breaches of court orders.
30 You have been given opportunities to reform with community orders and suspended sentences but you have not taken up those chances. Most, if not all, orders of this kind were breached. Indeed, you were on bail for a shop theft when you committed these crimes.
31 More troubling is that you had not been long out of prison, perhaps about six months or so following yet another sentence of imprisonment for violent offending.
32 You do have a full range of offences in your criminal history including for violence, burglary, weapons, drugs, driving, and dishonesty. However, this offending is by far the most serious you have committed. The escalation is of concern. On any analysis of your criminal history alone, your prospects of reform are rightly to be considered as very guarded indeed.
33 I will return to this matter shortly when discussing other aspects of your personal circumstances which, unfortunately, also paint a bleak picture of your prospects of rehabilitation.
34 In your case, I was particularly assisted by a comprehensive and realistic psychological report prepared by Dr Bath.
35 I pause to say that myself and many of my judicial colleagues are from time to time provided inadequate, perfunctory medico legal psychological reports on pleas. It sometimes prompts exasperated comments in sentencing remarks. So when a report is of the exemplary quality, as is the case here from Dr Bath, that too should be noted. His report allowed your counsel to put a realistic, sensible and thus helpful plea. There is not a lot to be said in mitigation but what could be said was said in writing and orally and, as I say, it was helpful.
36 I also examined the other psychological, neuropsychological reports from earlier times and the more recent medical records that were obtained from the prison. All of this indicated very considerable preparation by your lawyers.
37 From the material that I have, I have no difficulty in finding the following. Your upbringing was chaotic and your family circumstances generally dysfunctional. Your alcoholic father was often violent. Your education was too brief and largely ineffective. You had significant learning difficulties and left school at Year 8, hardly able to read or write. You were defiant and at times aggressive at school and generally as an adolescent. I note your older brothers were also lawbreakers.
38 You took to regular and heavy use of cannabis at an early age. This was followed by heroin and you were quickly and fiercely addicted to that drug. Your intimate relationships over the years were with other drug users and marked by violence. Your employment was intermittent, if you gained any at all.
39 A violent assault upon you when you were about 16 left you with an acquired brain injury and consequent epilepsy. This was superimposed on an already dull intellect. Over the years, your mental health has been problematic with depression, anxiety, paranoia and post-traumatic stress being prominent.
40 Your drug use expanded in recent years to involve that dreadful substance ice which has exacerbated your symptoms of mental ill health. You were in the midst of an ice binge when you committed these crimes.
41 These matters led Dr Bath to the following opinions. As I have said, it was a helpful report and I intend to quote it at length:
"Mr Ford's interpersonal and behavioural adjustments have been marked by disturbed and dysfunctionality since childhood. He has been exposed to violence for most of his life and has displayed antagonistic, defiant and violent behaviour from a young age, which has contributed to a significant level of disinhibited behaviour by repeatedly engaging in illegal activity.
Mr Ford is acutely sensitive to any indications of criticisms and has developed a ruthless approach to dealing with any problems in his life. He has significant propensity to rapidly escalate to hostility and aggressive behaviours when he feels he is being challenged. Therefore, his ability to manage conflict effectively is limited and continues to place a premium on dealing with conflict through overtly masculine means, being not wanting to appear weak or stood over.
Compounding matters, Mr Ford's ability to recognise and regulate his intense emotional reaction is poor and his behavioural control is limited. Hence, he is particularly prone to impulsive and reckless behaviour.
Adding to his difficulties is he is a very unsophisticated thinker and fails to recognise the consequence of his behaviour. Perhaps as a further consequence of his chaotic lifestyle and limited formal education, Mr Ford clearly lacks the required social and life skills to function effectively in society."
42 Dr Bath went on with a diagnosis in this form:
"Mr Ford's interpersonal and behavioural adjustments and associated personality traits are deeply entrenched and extend well beyond normal tendencies. They have resulted in considerable disturbances in every area of his life and have been stable through his lifespan.
I am of the opinion that these traits are sufficiently severe to warrant a diagnosis of anti-social personality disorder by DSM-5 criteria."
43 He goes on to say it is uncontroversial that the personality traits have been exacerbated by extensive substance abuse and regrettably you are unable to outline any strategies to remain abstinent. Given your poor coping skills and impulsive decision-making and poor behavioural control and significant associations within a drug sub-culture, you remain at elevated risk of continuing to abuse illicit substances.
44 He speaks of the need for extensive and intensive treatment and supervision if you are to have any realistic prospect of remaining abstinent from drug abuse into the future.
45 He says the most salient feature of your mental status when you were evaluated by Dr Bath are your significant depression and anxiety related symptoms. There was a significant reactive component to this given your current legal status. However, he noted that you indicated you experienced noteworthy emotional disturbances throughout your life as a result of the general turbulent lifestyle.
46 He continued:
"This assessment has identified entrenched emotional and behaviour disturbances being faced by Mr Ford. The significance of the problems make it clear that even with optimal access to treatment and supervision and support, he will face an arduous path forward if he is to achieve any semblance of a positive lifestyle in the community."
47 He indicated the need, as I have already said, of intensive treatment and prolonged in relation to substance abuse. The same for any psychological treatment and vocational training.
48 He indicated finally:
"The severity of Mr Ford's problems, their pervasive nature and the entrenched history all militate against optimism in his case. However, without extensive treatment and support his prognosis as regards further drug abuse and criminal behaviour is poor."
49 There are references in the report to assaults upon you. They are not just the serious assault causing your acquired brain injury in 1996. You were also stabbed in the leg in recent time and you were disturbed by that event as well.
50 While in custody on remand for this matter, you suffered a serious epileptic fit and as a consequence your movements and especially your facial movements were adversely affected. You were treated in the prison hospital but you are worried by this more serious turn of events. You expressed some remorse regarding the female victim in your interview with Dr Bath. This is a matter I take into account in your favour.
51 As has been stated, denunciation and protection of the community, deterrence to you and to others are the most prominent sentencing considerations. I do not overlook your rehabilitation but as Dr Bath opined, the picture is pretty bleak. You will need significant long term help to stay away from drugs on release. Likewise, you will need long term and intensive help with your mental health problems.
52 Your health, being your acquired brain injury and your epilepsy, makes gaol harder for you and you will need vocational help on your release to manage your life and hopefully get some meaningful work or meaningful social interaction.
53 I will return to the sentence to be imposed on you after dealing with Mr Bertoni's personal circumstances.
54 You, Mr Bertoni, are about to turn 47. You have an extensive criminal history both in Victoria and Queensland, and again I counted well in excess of 30 court appearances.
55 From my reading of all the court appearances in Victoria, they have seen the magistrates impose imprisonment, relatively short periods of imprisonment, in 2010, 2011, 2012 and 2013. You were not placed on any community orders, nor was there it seems a potential parole period that was fixed. That is the case up until 2014 when you were before a judge, that is Judge Meredith in the County Court, for offences of violence against your then partner. The judge imposed a sentence of 204 days combined with a 12 month community corrections order.
56 I have, as a consequence of reading Judge Meredith's sentencing remarks, been provided by the Crown with an updated and complete criminal history which reveals many criminal offences in Queensland over a number of years, which saw you receive a very large number of sentences of imprisonment, including some lengthy ones. There is relevant prior history including burglaries and the like which saw the imposition of significant terms of imprisonment.
57 After you were released from the sentence imposed by Judge Meredith, as I understand it in December of 2014, that is of concern, just a month or so before committing these offences, you had not at that point got started on the program part of the community corrections order, in particular the drug treatment.
58 As you waited for a placement, no doubt it would come when a spot was available perhaps after the Christmas/New Year period, you also had not had the benefit of any psychological treatment or a plan set up for you at that stage.
59 But your offence that I am dealing with you here committed in January 2015 breached the community corrections order and I will deal with you for that breach shortly.
60 Your prior history has involved violence, burglary, dishonesty, drug, driving and weapons offences, both in Queensland and in Victoria.
61 As to your personal circumstances, I think I can do no better than a succinct summary of these matters, your personal matters, as set out by Judge Meredith in his reasonably sentencing remarks of 4 September 2014. He said so far as your personal circumstances are concerned, you were at that time 45, you are nearly 47 now. You were raised in the Coolaroo area. Your father was a mechanic and your mother worked in childcare.
62 As a teenager, you moved to Castlemaine with your family. You left school at Year 10 and worked whilst you were in Castlemaine at the meatworks. You relocated to the Gold Coast at around age 18. While you were on the Gold Coast you lived with a partner in a relationship for approximately 10 years or so and you had one child, now aged 23.
63 You became qualified as a chef to your credit and you worked in the hospitality industry during some of the time that you were on the Gold Coast. You ultimately returned to Castlemaine to live with your family. You worked in various occupations, managing a restaurant and running a tattoo studio.
64 You bought a home in Castlemaine and were paying it off. You were in another relationship that lasted for five to six years. Your partner became unexpectedly pregnant and gave birth to your daughter. Very sadly, your daughter passed away from sudden infant death syndrome at the age of about two and a half months, in July of 2009.
65 Your relationship ended within months of your daughter's death. Your abuse of methylamphetamines escalated after the event and you became estranged from your family. You relocated to Melbourne, staying in motels and associating with other drug users and mixing in this milieu until you committed the offences that came before Judge Meredith. At the time of that offending, you were a heavy ice or methamphetamine user.
66 You were seen by Dr Cunningham. He had seen you for the purposes of the plea before Judge Meredith and has seen you again. I have read both is reports of 13 August 2014 and 28 September 2015.
67 In his most recent report he confirms the diagnosis of post-traumatic stress disorder arising from your sexual abuse that you suffered as a child at the hands of a neighbour. These are no small matters.
68 He added that you have much unresolved grief at the tragic death of your infant child in 2009. As noted, your criminal history in Victoria reveals that you descended into drug use and reckless criminal behaviour thereafter.
69 Of late, you have become more paranoid and anxious in prison. You feel hollow and full of emotional pain. You said to Dr Cunningham you were deeply sorry for putting the victims through the ordeal.
70 You have the very responsible job as head of the kitchen at the prison. Notwithstanding this, Dr Cunningham was of the opinion that you will do prison harder because of your fragile mental state. I take this into account to some small degree. I note you have done hospitality courses while in prison but I also note you are already significantly skilled and experienced in that industry.
71 You have provided clean urine samples, as did Mr Ford. Thus, you are spending your time in prison productively and that is to your credit.
72 On your request, and with the agreement of Judge Meredith, I will also deal with you for the breach of the 12 month community corrections order which was imposed for the offences of intentionally cause injury and recklessly cause injury. In respect of that breach, I have read of the circumstances of that offending together with the entirety of Judge Meredith's sentencing remarks.
73 I keep in mind that you did serve 204 days before being released on the community corrections order.
74 Your prospects for rehabilitation are, like Mr Ford, guarded at best. I am told you no longer have family support that you enjoyed previously. You realise you will need considerable help on your release and you expressed to Dr Cunningham your motivation to escape the cycle of drugs, offending and prison. It is hoped for your sake and importantly for the sake of the community that you do put into practice your expressed desire to end these destructive patterns that have seen you imprisoned far too often.
75 Mr Bertoni, I think I said at the time there comes a time someone like you just has to pull up.
76 Returning to sentencing principles that apply to both of you men. I keep in mind the need for parity. I have outlined some small differences in your offending behaviours on the day but in the end the differences go both ways. The sentences for these offences will be the same.
77 I say that having also considered in the sentences that your personal circumstances have differences but they are again not such to see in the end result different sentences.
78 I have kept well in mind the principles of totality. There must be some proper marking of the different offences, even the theft. As the Court of Appeal recently stated in the matter of Walsh v The Queen, that a theft involved in a burglary still requires and can have some cumulation.
79 The threats were also, as I have said, serious and cannot be just brushed aside or subsumed within the aggravated burglary.
80 In the end, the total punishment must fit the crimes committed by you men, for your past criminal history and your personal circumstances.
81 Thus, I have reconsidered the total sentence to ensure that the total sentence is just and appropriate with no more punishment than is required by justice. I have allowed for a period of potential parole. Whether you are granted parole is for others, not me. The minimum term is what justice requires as your period of incarceration. I have sentenced you mindful that you may do each and every day of your sentence.
82 I will separately sentence you, Mr Bertoni, for the breach but again keeping in mind the principle of overall totality as the breach in this case of the community corrections order was by this offending. I have examined other sentences in the context of what was said about current sentencing practices in Hogarth and in Myers and in Walsh, though the latter case was only a burglary and theft case, not an aggravated burglary case.
83 So doing the best I can, you men can remain seated.
84 Dealing with you first, Mr Ford. For committing the crime of aggravated burglary, you are sentenced to a term of imprisonment of five years. For committing the crime of theft, you are sentenced to a term of imprisonment of 18 months. For committing the crime of threat to kill, you are sentenced to a term of imprisonment of two years. For committing the crime of intentionally causing injury, you are sentenced to a term of imprisonment of eight months. For committing the second crime of intentionally causing injury, you are sentenced to a term of imprisonment of eight months. For committing the crime of unlawful assault, you are sentenced to a term of imprisonment of two months. For committing the crime of committing an offence while on bail, you are sentenced to a term of imprisonment of one month.
85 I order that six months on the charge of theft, 12 months on the threat to kill, one month on the first intentionally cause injury, 1 month on the second intentionally cause injury be cumulative upon Charge 1 and upon each other, giving a total effective sentence of six years and eight months. I order that you serve four years and eight months before being eligible for parole. I will check the maths shortly.
86 I will declare that Mr Ford has served 266 days of pre-sentence detention. Having reckoned that 266 days, I will ensure that this declaration is entered into the records of the court. The reason I will make sure it is entered into the records of the court is to ensure that prison authorities are left in no doubt that you have done 266 days of the sentence I have just imposed.
87 Mr Bertoni, for committing the crime of aggravated burglary, you are sentenced to five years and two months' imprisonment. For committing the crime of theft, you are sentenced to 18 months' imprisonment. For committing the crime of threat to kill, you are sentenced to two years' imprisonment. For committing the crime of unlawful assault, you are sentenced to two months' imprisonment. I order that six months of the sentence imposed for the theft and 12 months of the sentence imposed for the threat to kill be cumulative upon each other and upon the sentence imposed on the aggravated burglary, thus giving a total effective sentence of six years and eight months. I fix on that sentence a minimum non-parole period of four years and eight months.
88 In respect of the breach of the community corrections order, I find the breach proven and I re-sentence you in respect of the intentionally cause injury and the recklessly cause injury offences as an aggregate term of six months' imprisonment. I order that two months of that sentence be cumulative upon the sentence that I have imposed in respect of the indictments.
89 That gives you now a total effective sentence of six years and 10 months and I fix a new minimum non-parole period of four years and 10 months before you are eligible for parole.
90 Gentlemen, in respect of Mr Bertoni, I should complete that. Mr Bertoni, I reckon that you have served 273 days in prison and I declare that that 273 days be part of the sentence that I have just imposed. I will ensure that that declaration is entered into the records of the court so that prison authorities are left in no doubt that you have served 273 days of the sentence I have just imposed.
91 Had you men pleaded not guilty to these offences and been found guilty of them, each of you would have received a total sentence of eight years and six months, with a minimum non-parole period of six years and six months.
92 I make an order relating to disposal of items. Does the mathematics add up? Arithmetic. Mr Stevens, you seem to think it does?
93 MR STEVEN: I've only got to the first one, Your Honour. I believe the first one is correct. I am just going to the second page of the second one.
94 HIS HONOUR: What about you, Mr Cronin, are you satisfied it adds up?
95 MR CRONIN: I am, sir, yes.
96 HIS HONOUR: Thank you. Is the methodology that I have used the correct methodology? That is a total effective sentence, a minimum term should be declared then because it is quite separate. Whatever is cumulative is added onto that sentence and then fix a new minimum non-parole period?
97 MR CRONIN: Yes, Your Honour.
98 HIS HONOUR: Thank you. Is the mathematics correct in all regards?
99 MR GARDNER: Yes, Your Honour.
100 HIS HONOUR: Thank you. Is there anything further required?
101 MR STEVEN: No, Your Honour.
102 HIS HONOUR: Thank you. Gentlemen, you will be returned back to the prison cells. Prison authorities will endeavour to get you away. I will sign whatever records I have to sign as quickly as I can so that you are not held here beyond what is absolutely necessary but I have no control over the fact that prison authorities couldn't have both of you in the same room at the same time and we had to do it in this unorthodox way. That is unfortunate as it required you to be delayed. I am well mindful that that is a very taxing thing on people in your position. I thank counsel for their very considerable assistance in this regard, and to you, Mr Stevens, for sorting out those matters that you had to today.
103 MR STEVEN: Thank you, Your Honour.
104 HIS HONOUR: Thank you.
105 OFFENDERS REMOVED
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