Director of Public Prosecutions v Bisinella

[2023] VCC 215

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01699

DIRECTOR OF PUBLIC PROSECUTIONS

v

JADE BISINELLA

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF SENTENCE:	15 February 2023
CASE MAY BE CITED AS:	DPP v Bisinella
MEDIUM NEUTRAL CITATION:	[2023] VCC 215

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plea – Aggravated burglary – Offensive weapon – Aggravated burglary (person present) – Family Violence – Contravention of order intending to cause harm or fear for safety – Common law assault – General deterrence – Denunciation.

Legislation Cited:      Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Pasinis v The Queen [2014] VSCA 97; Kalala v The Queen [2017] VSCA 223; DPP v Meyers [2014] VSCA 314; Boulton v The Queen [2014] VSCA 342

Sentence:                  Total effective sentence of 2 years and 2 months’ imprisonment; Community Corrections Order of 2 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Office of Public Prosecutions
For the Accused	Mr J. Barreiro	Emma Turnbull Lawyers

HIS HONOUR:

1

Jade Bisinella on 8 February 2023, you pleaded guilty on arraignment

four charges on indictment being: an aggravated burglary, where the aggravating feature was that you had at the time of entering the victim's house an offensive weapon, namely a knife; the second charge was again an aggravated burglary the aggravating feature on this occasion was that there was to your knowledge a person present in the home of course, that being the victim; the third charge was a rolled up charge of a contravention of an intervention order with the intent to cause harm or fear for safety; and finally, the fourth charge was a common law assault. You pleaded guilty also to three summary offences, two being contraventions of family violence interim intervention orders and the third was a breach of the Bail Act 1977 (Vic).

2All the offences on the indictment arose from your violent behaviour on 13 December 2020, which was directed primarily to your ex-partner.  You and the victim had been in a romantic relationship for about six years.  At the time there had been in place an intervention order for about two months.  Though it seems clear on all the material that you did continue to see and be with the victim throughout this time.

3In the afternoon of 13 December 2020, the victim was at home with her parents and a male friend. You called the victim and became upset when she mentioned her male friend was at the house.  Although there was an interim as I have said, family violence intervention order in place, which included conditions prohibiting you from approaching within five metres of the victim or within 200 metres of her home, you drove to her home.  You then entered through her bedroom window carrying a knife.  This was Charge 1, an aggravated burglary involving an offensive weapon.

4Once in the room you appeared angry and pointed the knife at the victim.  This conduct was part of Charge 3, the rolled up contravention of the intervention order. The victim's male friend grabbed you to hold you back from the victim, but you continued to hold the knife, even after the victim's mother came into the room.  The male friend then took you by the arm and led you out of the house.  You then left in your car. The victim was traumatised by your frightening display of violence and she went to the nearby police station where she made a statement about what you had done.  She then went home to sleep and recover. However, her ordeal was not over.  You came back to her house around 11 pm, again you got into her home via the bedroom window.  I pause here to make clear that going in and out of that window was a common thing and no added aggravation is created by the fact that you used the window.

5Once the victim realised it was you, she told you to leave and that you could not be there because there was an order and the police were on their way.  You reacted badly to this saying, 'You dogged me, you dogged me'.  Meaning that you had gone to the police.  You then told her to drive you home and put the bike that you had come to the house - her house on in her car.  She came outside and told you to get the bike out of the car. You then followed her from the car into the house.  She tried to get away, but in a frightening escalation, you grabbed her by the throat.  She screamed out for a friend to help and you threw her over the couch.  You then left.

6

About three weeks later, the police arrested you.  In your interview with police, you denied or minimised your violent conduct.  Thereafter, you were remanded. Thus, pre-sentence detention to be declared as part of this sentence is

686 days.  I will return to this matter shortly.

7As is plain, violence of this kind to this victim is very serious offending.  Courts and the community are tired of violent men subjecting women to terrifying ordeals.  I also emphasise that the responsibility of the Court is to ensure proper punishment is imposed, usually involving imprisonment.  Violence directed at women or ex-partners is all too prevalent.  It is a scourge, and it must be denounced.  Punishment must operate to deter other men from embarking on similar cowardly attacks.

8In 2014, the Court of Appeal in Victoria said in what is now an often quoted case of Pasinis v The Queen,[1] that historically perpetrators of family violence were rarely prosecuted, and even when prisoners were convicted of such offences, they often received lenient sentences. Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence.  The Court went onto say that specific and general deterrence are very important factors in sentencing men who assault their partners.

[1] [2014] VSCA 97.

9Later in 2017, the Court of Appeal comprehensively analysed this topic of violence upon women by domestic partners or ex-partners in the matter of Kalala v The Queen.[2] Again there was an emphasis given to the importance of general deterrence and denunciation.  In that case the Court of Appeal said, and I quote:

It is well recognised that the prevalence of a particular type of crime may be a relevant sentencing consideration.  Trial courts at this stage are imposing sentences for family violence with increasing frequency.  This Court has repeatedly emphasised the need to condemn family violence in line with community expectations.[3] 

[2] [2017] VSCA 223.

[3] Ibid [55].

10Violence involving the putting of hands around a victim's throat is also all too prevalent and it is a frightening and a dangerous form of exerting power over a woman.  The well-known case of the DPP v Meyers affirms that the courts will see just how grave aggravated burglaries are in circumstances of an ex-partner breaking into a family home or the victim's home, because of some misguided or misogynistic sense that there was another man now in her life.[4]  The Court made clear that such conduct must be met with stern sentences.

[4] [2014] VSCA 314.

11Thus on any measure your two aggravated burglaries are serious.  They were part of a course of conduct.  The attack on the victim, especially the hands around her throat, is also without doubt a serious criminality that must be condemned and appropriately punished.  The victim was entitled to feel safe in her own house.  All women are entitled to feel safe in their homes. They are entitled to have friends of their own choosing and leave relationships when they want to.  They are entitled to socialise with male and female friends without the risk that they will suffer violence from an ex-partner or partner. The victim having sought the protection of the court ordered intervention order, she should have been or was entitled to feel safe.  Your disregard for the intervention order is concerning.  You must have known to go to her house with a knife, then go back later and perpetrate more violence was inherently wrong.  Your moral culpability is high.  Your conduct did occur in the context of a chaotic time in your life, with drug use and impulsive behaviour and homelessness surrounding this period of time.  I will return back to this, when discussing your personal circumstances.

12As I have said, or what can easily be presumed from these facts, was that the victim was traumatised at the time. This has not abated.  What she wrote in her victim impact statement is of importance in the sentencing task that I have.  She wrote that because of the crimes she is experiencing ongoing trauma and symptoms of post-traumatic stress disorder.  She has ongoing feelings of sadness, regret, guilt, fear, loneliness, distress and grief.  I pause there to say that you are the cause of these things and she should not have to suffer these emotional difficulties. She goes on to say that she has flashbacks regularly, which caused an overwhelming feeling of anxiety, distress and panic.  She is tormented by how the crime has made her feel constantly unsafe, helpless and threatened on a daily basis.  She is hyper-vigilant.  She has difficulty with trust.  She experiences anxiety both at home and socially.  She feels that her independence has been damaged and there are a lot of times where she feels there is no purpose.  She concludes that she has had significant difficulty socially because of the impact of the crime and she feels anxious as I have said around her home, but also for her parents. 

13

As I have made clear, denunciation and deterrence are primary sentencing purposes.  That said, your rehabilitation is also very important. You were 36-37 at the time of your crimes.  Your reform is in the best interest of the community.  However, you are not a young first offender.  You have prior criminal convictions, one of real concern being the glassing of an ex-partner that saw a very experienced judge of this court impose a sentence of three years' imprisonment, with a minimum term of two years.  That said you do not have a lengthy criminal history and the serious offence that I spoke about was over

10 years ago. 

14You completed your parole period without any difficulty.  There are some other criminal convictions for violence thus your reform is to be seen as guarded and ultimately in my view you must be supervised and assisted on release from prison.

15As to your personal circumstances.  Your parents separated when you were about 10.  You have had limited contact with your father.  Your real and  continuing support comes from your mother.  You also have a close bond with an aunt and an uncle.  Save for a period of about four years or so, when you lived with a partner who was the victim of your earlier crime I spoke of, you have by and large lived with your mother.  She stands by you despite your long history of destructive drug use. 

16I say that you have lived with your mother most of your life.  There was importantly period of instability and homelessness in the months leading up to this offending. You had an altercation with your stepfather, it seems that you had a good relationship with him over many years until around this time in April or thereabouts in 2020.  So after the altercation, an intervention order was taken out by the police and you had to move out.  After some time spent with your aunt, you ended up sleeping in your car or motels and the victim's home as well. It was the period from April 2020 to the offending that is properly described as one of significant instability.  You were admitted to a psychiatric hospital for a short period in November 2020. Your drug use at this time was out of control. 

17You have used cannabis and concerningly methylamphetamines from an early age.

18You have a daughter who is now 13 who is important to you and you have played a role in her life to date.  This continued notwithstanding your long period of separation while you have been imprisoned on remand.  She lives with your mother and it is proposed you will on release live there as well and take up a role as a parent. Your mother speaks positively of your efforts as a parent. 

19Both your mother and aunt and also a cousin wrote helpful letters to the court speaking of the significant change in attitude that they have detected while you have been in custody over the past 686 days.  They know you best.  What they say, gives me more confidence that you can reform. 

20You have endured trauma, connected with the Black Friday fires which were in your local area where you grew up or spent many years in Kinglake. And also your sister, your only sibling, took her life in 2009.  She was troubled by drug addictions as well. 

21I'm told that your aunt has terminal cancer.  She is like a second mother to you. Her loss will be greatly felt. If you were in custody at the time it would be more acutely felt. However, having taken this fact into account, it cannot be that I simply impose an inadequate sentence to deal with that sad contingency.

22You have worked in the past including for your uncle.  His son, as I understand it your cousin, is moving into the excavation business. You hope to get some work with him on release.  This is a positive development.

23You have established some drug rehabilitation connections within organisation known as Ideal Care Support.  The worker wrote an important letter and I quote at length:

I currently speak with Jade on a weekly basis as I supervise the video and visitation between Jade and his daughter […].  I would like this letter to provide an insight into Jade’s character development, plans and future if he is released. 

I first started working with Jade mid-2020.  At this time I observed Jade to be going through many deep struggles and trying his best to push through and get the right help. 

Once Jade was incarcerated it took us many months to finally get in contact with him.  When myself and a co-worker spoke with Jade we were shocked on how Jades personality and character had changed since being sober and finally looking after himself and working on getting healthy. 

I then started working with the prison for supervised visitations with [his daughter] and Jade which we finally achieved in May of 2022.  Since visitation has begun I have seen a healthy change in Jade as I observe him with his Daughter as they make plans for the future together and strengthen their relationship each week. In the visitations they speak on missed opportunities and how they would love the chance to catch up on what has been missed. 

24She concludes, I truly believe his character has become a very solid family man who is striving to better himself, not only for himself but for his daughter's future, he is polite and grateful to everyone who works with him.  And finally concludes that once he's released he will be supported with therapeutic supports employment and assistance through NDIS to become a stable and contributing member of the community.

25These positive steps and all the solid supports that you have for your family at home and with this drug rehabilitation organisation lead me to consider a Community Corrections Order on your release, rather than what seemed the obvious which was a head sentence with a non-parole period.  I had you assessed for a Community Corrections Order and ultimately you were found suitable.  What was said in the report was the following:

When asked about his current charges, Mr Bisnella expressed remorse for the victim and her family. He stated that being within custody has allowed him a chance to detox from drugs and have a clear head to reflect on his actions.

26You were asked if you had completed men's behaviour change programs and you said you had twice, 2010-2011, and you got more out of it the second time.  That led to this conclusion, which is a conclusion that comes with caveat:

Based on the information above, Mr Bisnella's compliance on his Parole Order and the steps towards his rehabilitation that has started taking within custody, he has been assessed as suitable for a CCO at this time. However, the serious nature of his offending towards women is acknowledged. It is of concern that he has engaged twice in men's behavioural change programs and has continued to offend and with high severity.

27I must say to the author of that report, it was very insightful and helpful, perhaps more so than I have read in other reports.

28The sentencing purpose in s 52 of the Sentencing Act 1991 (Vic) is directed at rehabilitation requires me to establish conditions to facilitate your rehabilitation. In that regard I have few tools. One way of dealing with it is the fixing of head sentence and a non-parole period. But when fixing a non-parole period, it is of course for others to determine when and if you are released on parole and also the conditions of your parole. Oversight is with the experts from the Parole Board and Corrections. The Community Corrections Order is similar in terms of practical management, via Corrections as it is on parole. The certain release date and the court oversight is where things begin to differ.

29The Court of Appeal in Boulton v The Queen made clear the significant benefits of the Community Corrections system.[5]  We are said to have changed the sentencing landscape and committed sentencing judges to establish conditions to facilitate rehabilitation, even for serious crimes that in the past warranted and received significant terms of imprisonment.  Also, a Community Corrections Order is punishment in and of itself.  As the Court said, they are not to be seen as soft options.  Punishment and rehabilitation can occur simultaneously in the community.  Punishment and rehabilitation in the community also has the benefit of keeping or reuniting families which were seen as an important factor to consider.  Here your role as a parent is likely to bring increased stability and thus more embedded reform.

[5] [2014] VSCA 342.

30You, Mr Bisinella, ought keep in mind that you should never again let your daughter or mother down by resorting to drugs or crime.  Be assured that if you do return to crime, you will likely serve lengthy gaol terms.  There will be no further scope or merciful sentences such as what I am about to announce.

31As to the issue of multiple crimes being the four crimes on the indictment and the three summary matters.  These multiple crimes set out as I have said appeared to occur in a course of chaotic thinking or, if that is not the right term, you did not think clearly about all this and went to the house that you should not have gone, armed on one occasion and just going back on the second, and committed violence while you were there. There are multiple crimes, but they are connected and warrant some of moderate cumulation.

32You have served 686 days which are attributable to this offence which is approximately 22 and a half months of imprisonment.  Release immediately is not in my view appropriate because of the gravity of the offending.  What is appropriate is a short further time in prison before being released on a lengthy Community Corrections Order.

33In fixing the sentence I have factored in the greater benefit to be accorded to you for your plea which came in COVID times.  Your plea is an expression of remorse and you have said as much to the Corrections officers when they assessed you for a Community Corrections Order.  Your plea was a late one, it came in the shadows of the trial.

34I also take into account that gaol has been onerous during the pandemic and I have factored that into the sentencing equation.  That said, you have done all that you could while in prison to rehabilitate and all that is to your credit.

35I sentence you as follows:

(a)   For the aggravated burglary with the knife, Charge 1, you are sentenced to 22 months' imprisonment;

(b)   For the aggravated burglary, Charge 2, you are sentenced to 18 months' imprisonment;

(c)   For the intervention order, Charge 3, you are sentenced to six months' imprisonment; and

(d)   For the common assault, Charge 4, you are sentenced to nine months' imprisonment.

36

Your summary offences are the breach of the intervention order,

two charges, and the bail offence. I sentence you to one month on each of those.

37

The orders I make for cumulation are that two months of Charge 2 and

two months of Charge 4, are cumulative upon each other and upon the base sentence of Charge 1.  That gives a total effective sentence of 26 months.  In addition, I impose upon you a Community Corrections Order of the length being two years and four months. 

38Just in a global sense, the punishment involves incarceration and supervision for a period of about four years and six months equivalent in many ways, not mathematical, to the broad sentence that may have been imposed as a head sentence.  In respect of the Community Corrections Order, the conditions are that you will be under supervision, that you do programs that you are required to do by the Office of Corrections.  It highly likely will deal with your anger and the issue of violence towards partners and women.  This time it has to work.  You must absorb and carry out what you learn. Further you are to undergo assessment and treatment for drug addictions.  Further you are to be supervised having judicial monitoring, that sort of supervision and come back to court.  The date will be selected in approximately three months.

39I had thought that there was a need for your mental health assessment.  I read that the very detailed report indicates that this can be taken up by the dedicated drug rehabilitation people that you are engaged with at the moment, directed to mental health counselling that occur from in that organisation or from mental health system, that is a general practitioner's mental health plan.  Whatever it is get some help for the residue of your ADHD or ADD and the issues that drive you towards drug addiction.  So there is no condition of mental health, but it is to be dealt with in - dealt with by those that support you at the moment.  They are the conditions, there will be other standard conditions which will be explained to you.

40The sentence that I have just imposed has been of course a good deal of that already served.  It has been calculated at 686 days which are referrable or declarable to this offending.  That being the case I will ensure that this declaration, that the 686 days that you have served is part of the sentence I have just imposed, I will ensure that declaration is entered into the records of the court and thereby the prison authorities are left in no doubt that you have done 686 days of the sentence that I just imposed.

41There is a requirement under s 6AAA of the Sentencing Act 1991 (Vic) to declare what would have happened had you gone to trial. This is always a difficult proposal given the way the matter is settled and so on. But had you pleaded not guilty and been found guilty of these two aggravated burglaries, I would have imposed a sentence of five years and six months with a minimum terms of four years.

42I have imposed a sentence of 26 months, most of which you have served.  What ordinarily would be the case under the Sentencing Act 1991 (Vic) is that I would have to declare, given that it is beyond two years a non-parole period. However, I have declined to do that for reasons that are obvious, that you have served almost that period of time I have then added some more that I am allowed to do so under the provision of the Sentencing Act to enable you to then on the conclusion of your sentence commence a Community Corrections Order. 

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