Director of Public Prosecutions v Buttigieg (a pseudonym)
[2022] VCC 2166
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND BUTTIGIEG (A PSEUDONYM) |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2022 | |
DATE OF SENTENCE: | 25 August 2022 | |
CASE MAY BE CITED AS: | DPP v Buttigieg (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2166 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence after guilty plea; Aggravated burglary; False imprisonment; Assault with intent to commit a sexual offence; Armed robbery; Offender employed as removalist and assisted victims to move to new home; Victim bound and knife used to compel cooperation and cut clothing; Offender interrupted by return of victim’s husband; Significant victim impact; No previous convictions; Remorse; Degree of insight; Plea of guilty at earliest practicable opportunity.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Nelluri [2017] VCC 1087; DPP v Wai [2019] VCC 513; DPP v Mitchell [2018] VCC 912; DPP v Richmond [2017] VCC 57; DPP v Douglass [2018] VCC 242; DPP v Holmes [2018] VCC 574; DPP v Drake [2019] VSCA 293
Sentence: Total effective sentence of 6 years and 6 months imprisonment, non-parole period of 3 years’ and 9 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon | Office of Public Prosecutions |
| For the Accused | Mr J Lavery | SWD Legal |
HIS HONOUR:
Introduction
1Raymond Buttigieg[1], you have pleaded guilty to one charge of aggravated burglary, one charge of false imprisonment, one charge of assault with intent to commit a sexual offence and one charge of armed robbery.
[1]A pseudonym.
Background
2At the time of these offences you were 26 years of age and had been employed by Western Van Lines for about 16–18 months as a removalist.
3In November 2021, the victims of these offences, Michelle Liu[2] and her husband Jacob Liu,[3] together with their 10-year-old son, moved into a property in Warrnambool[4].
[2]A pseudonym.
[3]A pseudonym.
[4]Location de-identified.
4On 11 and 12 November 2021 you attended that property as part of your employment as a removalist. Whilst you were there you spoke with Ms Liu, telling her your name was Ray.
5On 23 November 2021 you rang your employer and told him that you were not coming into work that day. Indeed, you did not work after that date.
Circumstances of offending
6At about 10am on 30 November 2021, you rang your employer and asked to pick up your logbook and agreed to meet him later for that purpose.
7On that day, Mr and Ms Liu had plumbers working at their Warrnambool home.
8At 11.38am the plumber left the address for his lunch break.
9Ms Liu’s husband also left the house to go and have some lunch. Ms Liu remained home alone.
10At 12.20pm you drove your stepmother’s grey Toyota HiLux utility past the property. You had apparently borrowed that car and left your own vehicle at home.
11At 12.22pm you drove the HiLux into the Warrnambool home driveway and parked it behind Ms Liu’s vehicle. At 12.25pm you entered the house via the unlocked front door intending to assault Ms Liu. You had a flick knife in your possession when you did so. That conduct constitutes Charge 1 – aggravated burglary.
12Ms Liu was in her ensuite when she heard you inside the house, however she thought that the plumber had returned. She walked into the main bedroom and saw you. She asked you your name and you replied, “Andrew”. You then asked her if anyone else was at home. Ms Liu started to feel afraid so she told you that the plumber would be home soon and that you had better leave. She then tried to leave but realised the front door had been locked.
13You then grabbed Ms Liu by the arm and attempted to take her phone. She pulled away from you, grabbed a pair of scissors from the counter and then tried to run out the back door. You grabbed her by her hair and her arm and pulled her back along the floor, taking the phone and the scissors from her. Ms Liu saw you remove a flick knife from your pocket and unfold it; she then stopped trying to get away.
14You dragged Ms Liu to the guest bedroom across from the main bedroom and threw her on the bed. You closed the door and at the time you did this Ms Liu noticed that you were holding a roll of black tape. You told her to close the blinds but she refused. She asked you not to hurt her and spoke to you about her 10-year-old son. She asked you for a drink of water, which you gave her. She continued to try and talk to you in order to buy time, hoping that the plumber or her husband would return. You repeated that your name was Andrew.
15You again asked Ms Liu to close the blinds and when she refused you went to close them yourself. At this point Ms Liu attempted to run away. She ran outside the room and tried to push the door shut behind her but you forced the door open and grabbed her. You told her, “If you try to run away you are getting very hurt, if you do it again you can’t imagine the result”. That conduct, in detaining Ms Liu against her will, constitutes Charge 2 on the indictment – false imprisonment.
16You then pushed Ms Liu face-down onto the bed and tied her hands behind her back using the tape. You then turned her over and used tape to cover her mouth by wrapping it around her head. You asked her if anyone else would come home, but she wasn’t able to respond because the tape on her mouth prevented her from speaking.
17You pushed Ms Liu into the main bedroom at the back of the house and into the ensuite. You put her in the shower and used the knife you had with you to cut a hole in the tape on her mouth so that she could talk. You again asked her whether the builder was coming back but she did not answer.
18She began to cough and asked you for a drink, so you used the shower hose to give her some water, which wet her clothing. You pushed her back into the shower while she begged you not to hurt her, telling you to take her cash and jewellery.
19You then put something in Ms Liu’s mouth and again taped over her mouth. You then taped over her eyes and pushed her face forward against the shower wall using your arm against her neck. You used the shower hose to wet her clothing again.
20While she was in this position against the wall, you used the knife to cut her shirt from the back. Ms Liu struggled but you pushed her neck tightly, making it difficult for her to breathe. You told her, “Stop fucking moving, I just want you”. She stopped moving and you turned her around and cut the top of her shirt at the front, moving the knife downwards. Ms Liu felt the knife against her skin.
21That conduct constitutes Charge 3 on the indictment – assault with intent to commit a sexual offence.
22When the water ceased flowing, you realised that the plumber must have returned. You left the ensuite and Ms Liu was able to loosen the tape around her mouth. At about this time Mr Liu also returned. He walked into the main bedroom and saw you there. Ms Liu yelled out in Mandarin, “He’s a robber, just be careful”. Mr Liu saw you holding the knife.
23You then said, “This is a robbery, hand over your phone”. In response, Mr Liu threw his phone towards you and you picked it up and put it in your pocket. That conduct constitutes Charge 4 on the indictment – armed robbery.
24As you were picking up the phone, Mr Liu used a chair to move towards you and then began punching you. You then fled through a side door, pursued by Mr Liu and the plumber, who had come into the hallway after hearing the confrontation. The plumber took photos of your car as you left.
25When you were leaving you wound down the front driver’s side window and said to Mr Liu, “You’re fucking dead”. Mr Liu picked up a ceramic pot plant and threw it at your car, smashing the windscreen.
26CCTV shows that you left the property at 1.06pm.
27Attending police located cable ties at the entrance to the house, the black roll of tape in the living room and discarded tape with some of Ms Liu’s hair still attached.
28Two days later, police located the HiLux you had used at the time of the offences in Portland. They found the 20cm brown-handled flick knife under the driver’s seat, cable ties, two black gloves, yellow rope, a notebook with a handwritten note saying “Dad sorry about the Ute. I did not have much say in it. I love you goodbye”, and a white sheet of paper with what appeared to be blood on it.
29Investigators also located your fingerprints on the shower screen door at the Warrnambool address and on Ms Liu’s mobile phone which was located in the kitchen. Your DNA was located on Ms Liu’s clothing and on the black duct tape that had been used to bind her.
30On 3 December 2021 police received a call from your brother advising them that you had been expressing suicidal intent. You were arrested at an address in Point Cook and taken to the Werribee Mercy Hospital for psychiatric assessment and thereafter interviewed by police. You elected to make no comment in that interview after which you were charged and remanded in custody. You have since remained in custody.
Victim Impact
31The impact of your offending has been devastating.
32Ms Liu provided a victim impact statement which begins as follows:
“It is really hard for me to write how is my feeling as a direct victim of this horrible event. My life had been hard enough in last ten years as a cancer survivor. After been through all the surgeries, chemotherapies, radiotherapies, I eventually survived all the ordeals, moved to a new home. But that happiness quickly changed to a nightmare because of offender’s activity.
“As a result of the offending I have felt violated, disrespected, angry and sad.”
33Mr Liu also provided a victim impact statement in which he explained that the new home his family had moved into is no longer a safe place because it continually reminds him of what he and his family went through.
34You should understand that the impact your offending has had on these victims will be a very important consideration in the formulation of the sentence to be imposed.
Procedural history
35You pleaded guilty to these offences at committal mention in the Magistrates’ Court and it is accepted that those pleas were entered at the earliest practicable opportunity.
36In addition, you entered that plea in circumstances where the court is striving to manage the backlog of work created by the pandemic and accordingly, the utilitarian benefits of the plea are very substantial.
37Those matters taken in combination require that that there will be a substantial reduction in the sentence that would otherwise be imposed.
Personal circumstances
38You were born in December 1994 and are now 27 years of age. You were 26 when you committed this offence and as your counsel Mr Lavery submitted that you were therefore a relatively youthful offender.
39Importantly, you have no previous convictions.
40You were born and raised in Portland[5] and your parents separated when you were five years of age. According to your mother, who provided a personal reference, you were noticeably affected by your parents’ divorce. You remained living with your mother and later her new partner, but were often distressed at not being able to regularly see your biological father.
[5]Location de-identified.
41When you were five or six years of age you were quite seriously sexually assaulted by an elder brother. As a result, the brother was placed in foster care. When you were about 18 years of age your mother attempted to obtain psychological treatment to address the impact of that experience, but without success.
42A medical report from your General Practitioner Dr Andrew McAllan was tendered on your behalf on the plea. Dr McAllan has been looking after you for the last 15 or so years. He was aware of your sexual abuse and also of the abusive treatment you endured at the hands of your stepfather as you were growing up. He refers to your main medical issues as “social anxiety” and “post trauma stress disorder” together with disengagement from your family because of illicit drug use.
43When you were about 16, apparently in response to the abuse from your stepfather, you moved in with your father and became closer to him. It appears that you were settled with him until you developed your substance abuse problem.
44You attended a small primary school and although you enjoyed reading you were diagnosed with Attention Deficit Hyperactivity Disorder for which you were medicated for a couple of years. It seems that you were disruptive and were asked to leave primary school. You then attended Bainbridge College from Years 6 to 10. Your academic performance was mediocre at best; you say that you were too insecure and distracted in class to achieve better.
45Whilst living with your father, you enrolled in adult education and were able to complete the equivalent of Year 12. That was quite an achievement given your previous difficulties.
46You spent the next three or four years working in a software game store where you eventually became the manager. You then worked for a time in fast food stores and in a tobacconist.
47When you were about 14 you began binge drinking alcohol on weekends, and at 17 started to use cannabis quite regularly. At the age of 21 you received an inheritance of $50,000. You took time off work, purchased an expensive car, and started to experiment with methylamphetamines. That experimentation quickly escalated into regular and then daily use, which has been problematic for you ever since.
48Dr McAllan’s report states as follows:
“… He has been left with social anxiety and self-esteem issues. He has had these issues compounded by being involved with illicit drugs. That has certainly made his mental health worse and has actually resulted in psychotic episodes. When he has episodes of psychosis he feels strongly suicidal, which settles after initial treatment with medication and abstinence from illicit drugs. Usually at this point he disengages from psychological and psychiatric care and so there is no ability to follow through on being able to internally manage the traumas that he has had.”
49I note that you last attended Dr McAllan on 29 November 2021, the day before you committed these offences. Mr Lavery submitted that it was to your credit that you had sought help with respect to your drug problem and that you continue to be motivated to do so.
50In addition to the personal reference provided by your mother, a reference was also provided by your mother’s partner, who has known you for last 15 years and married your mother in 2014.
51As a teenager you impressed him as shy but engaging. He, like your mother, has attempted to provide support for you as you have grappled with your drug problem in more recent years. He was confident that you had remained drug-free for a time whilst working as a removalist but for reasons which were unclear had relapsed. He was clearly impressed by the depth of your remorse.
52You were assessed for the purposes of your plea by a consultant psychologist, Mr Warren Simmons. In his report of 22 July 2022 he set out your history of intimate relationships and your psychosexual history. He says you estimated that you had had at least 30 sexual partners “…although less than 10 have been in some form of relationship no matter how short”. Mr Simmons did not suggest the presence of any particular psychosexual disorder, nor was it suggested that there was any link between your conduct in committing these offences and your previous sexual abuse.
53Although you have no criminal history and according to Mr Simmons you do not present with any significant antisocial personality traits, he did identify a history of chronic suicidal thoughts from a young age.
54Mr Simmons suggested that in the lead up to the commission of these offences you were struggling with your substance abuse and had been fantasising about taking your own life some time. You told him that on the day of the offence you had been driving aimlessly around and developed the idea that you would scare the victim and become ashamed of what you did, which would provide you with further incentive to take your own life.
55You also instructed your counsel that you were affected by methamphetamine at the time you committed these offences. That last matter seems to have been objectively confirmed.
56Your counsel acknowledged that the available material provided a less than adequate explanation for why a person with no previous convictions of this kind, or of any kind, would suddenly decide to commit an offence of this grave character. It might be useful, he suggested for example, to explore whether or not your offending behaviour was linked with your earlier experience of abuse. He submitted that I should seek a pre-sentence psychological or psychiatric report from Forensicare. That position was not opposed by the prosecutor.
57Ultimately, I have determined not to seek a further pre-sentence report. In my view the available material provides an adequate basis on which to impose sentence. The utility of a further psychological/psychiatric report is speculative. I accept that the available material does not provide a comprehensive picture as to your motivation for committing this offence. However, as I see it, what that motivation might be may well take some time to emerge. Certainly, it was not readily apparent to an experienced psychologist such as Mr Simmons. No doubt, in time your reasons for offending in this way will be something that can be explored, and if necessary treated, whilst you are in custody, and perhaps also whilst subject to supervised release.
58Mr Lavery argued that your plea of guilty, coupled with the expressions of remorse to your family and your psychologist, provide a sound foundation for a finding that you are genuinely remorseful. The prosecutor did not challenge that contention and I am satisfied that you are remorseful.
59Your counsel also submitted that you had excellent prospects for rehabilitation. He pointed to the insight and victim empathy you have shown as identified by Mr Simmons, your lack of prior convictions, the support of your family, your motivation to deal with your illicit drug problem and your remorse, in support of that submission.
60In my view, it is not possible to come to a concluded view about your prospects for rehabilitation. I accept the matters relied on by Mr Lavery augur well, but in the absence of a clear understanding as to your motivation for this offence, it is difficult to be definitive as to your prospects. Certainly the matters he relies on mitigate generally but have particular relevance to the fixing of the non-parole period – and suggest that you might be able to take advantage of a longer than usual period where you are released subject to supervised parole.
61It was also submitted that the psychological conditions identified by your general practitioner, particularly the post-trauma stress disorder, would mean that your sentence of imprisonment would weigh more heavily upon you than it would on a person of normal health. The prosecutor accepted that that principle had some limited application in your case, as do I.
Nature and gravity of offending
62The maximum penalty for aggravated burglary is 25 years imprisonment.
63The maximum penalty for false imprisonment is 10 years imprisonment.
64The maximum penalty for assault with intent to commit a sexual assault is 15 years imprisonment.
65The maximum penalty for armed robbery is 25 years imprisonment.
66The parties agree that the most serious conduct attaches to the third charge, being assault with intent to commit a sexual offence.
67There are some features of this offending that render it particularly serious.
68There was clearly a degree of thought and planning involved. You had assisted the victims’ move into their house two weeks previously. You must have been familiar with the layout of the house and it appears you used the knowledge you had gained whilst working as a removalist to conclude when you drove past the house that it was safe for you to enter after Ms Liu’s husband and the plumber had left.
69When you did enter the house you were equipped with cable ties, duct tape and the knife, no doubt in anticipation of restraining and assaulting the victim. You also locked the door behind you once you entered to prevent the victim from getting out.
70The CCTV footage captures your arrival at the premises at 12.22pm and your departure at 1.06pm. You were therefore inside the premises for approximately 44 minutes. That in itself is a lengthy time, for most of which Ms Liu had to endure your terrifying behaviour. Significantly, her ordeal only came to an end when her husband and the plumber returned. That they did so is likely to have prevented the commission of a more serious offence.
71As I have indicated, the actions which constitute the offence of assault with intent to commit a sexual offence make that charge particularly serious. You used duct tape to bind Ms Liu’s hands and cover her face and mouth. You used the knife to compel her to submit to you through fear for her life. Moreover, when you used the knife to cut the victim’s clothing from her back and her front, she could feel the knife against her skin. Nor can I overlook the fact that you perpetrated these offences in the victim’s own private home, where she was entitled to feel safe.
72The conduct constituting the armed robbery is a less serious example of that offence, likely committed opportunistically to facilitate your escape, albeit that there needs to be some recognition of the impact on Mr Liu which was significant.
73Ms Guesdon submitted that, viewed as a whole, the objective gravity of your offending was high. Given the particular features of your offending which I have highlighted, I agree with that submission.
Comparative cases
74I was referred to a number of decisions where sentences for the offence of assault with intent to commit a sexual offence have been imposed.[6] I have examined those decisions to determine if there is anything relevantly comparable or instructively different that may assist in formulating sentence or gauging current sentencing practice, bearing steadily in mind that the latter is but one of a myriad of considerations that must be synthesised.
[6] DPP v Nelluri [2017] VCC 1087; DPP v Wai [2019] VCC 513; DPP v Mitchell [2018] VCC 912; DPP v Richmond [2017] VCC 57; DPP v Douglass [2018] VCC 242; DPP v Holmes [2018] VCC 574; DPP v Drake [2019] VSCA 293.
75It seems to me that the Court of Appeal decision in Drake may be put to one side given that it concerned a number of different charges and that the application of the totality principle was likely to have influenced the individual sentences imposed.
76The balance of the comparators are decisions of this Court that provide some general sense of current sentencing practice but properly analysed are of limited utility. Two observations that might be made are that aside from Holmes, where an electric cord was used toward the end of the offence, no other decision involved the use of weapons, nor did those cases, with the possible exception of Mitchell, involve the degree of planning which is apparent here.
Conclusion
77In these sentencing reasons I have identified a number of factors which mitigate the sentence to be imposed. They include your lack of previous convictions, your early plea of guilty, your remorse, the support of your family, the motivation you have to deal with you drug problem, and the insight and victim empathy you appear to have shown as identified by Mr Simmons.
78I must also give effect to the principle of totality, given the substantial overlap between offences. The application of that principle will limit the aggregate sentence imposed.
79However, I have to balance those considerations against the overall objective gravity of your offending, which I have assessed as high.
80Violent offending for sexual gratification is anathema to our society and it needs to be well understood that those who commit that kind of offence will incur sentences that denounce such conduct, that deter others from engaging in such conduct and that protect the community by depriving offenders of their liberty for a significant period. In the sentencing synthesis, those considerations must be given substantial weight.
81Taking all relevant matters into account, you will be sentenced as follows:
(a) on Charge 1, aggravated burglary, you will be convicted and sentenced to a term of imprisonment of 3 years and 9 months.
(b) On Charge 2, false imprisonment, you will be convicted and sentenced to a term of imprisonment of 3 years.
(c) On Charge 3, assault with intent to commit a sexual offence, you will be convicted and sentenced to a term of imprisonment of 5 years and 6 months.
(d) On Charge 4, armed robbery, you will be convicted and sentenced to a term of imprisonment of 3 years.
82I will order that 6 months of the sentence imposed on Charge 1 and 6 months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3. All other sentences or part sentences are to be served concurrently with the sentence imposed on Charge 3. That renders a total effective sentence of 6 years and 6 months. I will fix a non-parole period of 3 years and 9 months.
83I will declare pursuant to s 18 of the Sentencing Act 1991 that you have already served 266 days by way of presentence detention and I will cause that declaration to be noted in the records of the court.
84I will also declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 8 years and 6 months imprisonment and I would have fixed a non-parole period of 6 years and 6 months. I will also cause that declaration to be noted in the records of the court.
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