Director of Public Prosecutions v Bertus

[2016] VCC 1178

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00563

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY BERTUS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 August 2016
CASE MAY BE CITED AS:	DPP v Bertus
MEDIUM NEUTRAL CITATION:	[2016] VCC 1178

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	Office of Public Prosecutions
For the Offender	Mr D. Gray

HIS HONOUR:

1Ashley Bertus, you can remain seated. On 20 July this year I granted your application made pursuant to s.208 of the Criminal Procedure Act for a sentence indication.  Delivering reasons for granting the application I made the following remarks which are relevant now that you have pleaded guilty to aggravated burglary and recklessly causing injury and are before me for sentencing.

2On 4 July 2015 you went to the house of the victims, pushed your way in and recklessly caused injury to the male victim.  The residents at the house were your girlfriend's mother and stepfather.  Your girlfriend did not get on with her mother or stepfather.  She remained close to her father after a separation some four years previous.  You say your girlfriend got particularly upset at an entry on Facebook which was critical or disparaging of her father.  She wanted to confront her mother and you went with her.  The occupants of the house had some forewarning that your girlfriend was angry.  When you arrived and knocked the male occupant came to the door and told you and your girlfriend to leave.

3Unfortunately for you and for him, you did not leave and barged - banged again on the door and the front window and the male again came to the door to tell you both to leave, you opened the front security door and barged in throwing punches.  The male victim fell to the ground and hit his head on the sliding door, breaking the glass panel.  At some point he sustained a serious broken leg.  The female victim came to get you to stop.  You told her to "not treat your daughter like that".  You and your girlfriend then left.  The police had been called. On your arrest you gave a differing account.  That is of little moment now.

4As I pointed out in those earlier reasons, the victims were entitled to feel safe in their own home.  You caused them fear and injury.  They spoke of the adverse impact on them of your violence in their victim impact statements.  I take what was said in those victim impact statements into account.  The female victim has lost hope re-establishing her relationship with her daughter.  The male victim has lost his sense of safety in his own home and his self-esteem as a protector. 

5Your violence must be met with punishment.  However the punishment of last resort is not required.  In the end a community corrections order is the appropriate penalty.  You were assessed for a community corrections order and are suitable.  It will be no soft option, requiring a significant number of unpaid work hours.  It will also serve to assist you to rehabilitate by requiring you to address problems with anger.

6Your old, prior conviction is relevant and taken together with this offending, must make it clear to you that you are on your last chance.  You are now 27 and have good prospects for the future.  You are not troubled by drug problems.  You need to assess your drinking and understand what responsible drinking is.  If you complete a community corrections order the community will be the better for it.

7You have had some period of unemployment, which you say flowed from your prior conviction.  As I said a gaol term would likely have the same deleterious impact on your employment prospects.  You are now employed at a local business and you have some prospects with them of an apprenticeship.  You are also studying now, having enrolled recently.  Mr Bertus, this is your chance.  Do not waste it. 

8Your plea of guilty means your sentence will be less than it otherwise would have been.  Your criminal conduct was serious requiring denunciation and deterrence.  Those who lose their temper and confront people in their own homes ordinarily will face incarceration.  Well that is not required here.  Be assured, if you slip up at all in what is required of you in the community corrections order you will end up in prison.  That will put an end to your work.

9For the crimes of aggravated burglary and recklessly cause injury I intend to impose an aggregate sentence.  That being a community corrections order that lasts for two years and six months.  You are required to do the 300 hours of unpaid community work, also be under supervision.  You are required to have treatment and assessment for problems with alcohol abuse and do other programs and I indicate anger management is required, other programs that will deal with your risk of re-offending. 

10Had you pleaded not guilty to these offences and been found guilty of them I indicate to you that I would have imposed a sentence of imprisonment of nine months followed by an 18 months community corrections order.

11The prosecution has applied for - made application that you provide a forensic sample and I intend to grant that application on the basis of the seriousness of your offending and your prior convictions and it is in the interests of justice that you provide a forensic sample.  That means you have to, within a period of time, attend at a police station, have a swab taken from your mouth.  When that - when you go to do that you have got to cooperate with the police that will take that sample from you.  If you do not cooperate they are authorised to use reasonable force to enable the procedure to be conducted.

12The document will be printed and if you sign that it will bring the matter to an end.  So, Mr Bertus, the community corrections order that I have just imposed starts today and finishes in two and half years' time.  That's 14 February 2019.  The conditions that apply to everyone on a community corrections order are these.

13You must not commit another offence for which you can be imprisoned during the time the orders are in force.  That is almost every offence you can think of certainly anything of violence will see you breach this order and return back to me.

14You must comply with any obligation or requirement under the proscribed regulations.  Usually they take a photograph of you and otherwise identify you with the community corrections centre so cooperate with all that.

15You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre at Ballarat.  That is in 206 Mare Street, Ballarat within two clear working days.  So we go today, tomorrow and then latest is the next day. 

16You must let the community corrections officers know within two clear working days if you change your address or your job. 

17You must not leave Victoria without getting permission to do so and you must obey all lawful instructions from and directions from the Office of Corrections folks. 

18So all of that, the last three things, means just keep them up to date with what you are doing.

19So the conditions that apply to you - as I said this is no soft option.  Gaol is usually imposed for this.  In your case, not, so you must perform 300 hours of unpaid community work over this 30 month period.

20You must be under the supervision of the community corrections officer for the full period.  They may need to see you to see how things are going.  You have just got to attend each time. 

21You must undergo assessment and treatment for alcohol abuse.  You must participate in programs and/or courses to address factors relating to your offending such as anger management.

22All right now in respect of turning up for community work and the like, you have just got to do it routinely without fail.  There may be others there that you might come across who are not so interested in getting on with their lives, they are more interested in returning back to the courts and all the rest of it, you just put those people to one side and get your work done as quickly as possible.

23Mr Gray has said that he has made clear to you that this has to be done and it might mean that you have to put work, if you are required to do it on the weekend or the like, to one side for the period of time.  That is so you have got to make sure you get this done when you are required to do it.  If you sign this, that will bring the matter to an end.

24MR GRAY:  May I be excused, Your Honour?

25HIS HONOUR:  Yes.  Thank you.  All right that is signed.  You get a copy of that together with the forensic sample business.  As I say it brings the matter to an end.  I thank counsel for their assistance in this regard and for their early attendance.  Or was that for your benefit?  I can't remember.

26MS PARKES:  I don't think so, Your Honour.

27MR GRAY:  It certainly assisted me, Your Honour.  I thank the court for that.

28HIS HONOUR:  Right, thank you.

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