Director of Public Prosecutions v Cahill
[2019] VCC 50
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00568
Indictment No H12366334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROXANNE CAHILL |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2019 | |
DATE OF SENTENCE: | 1 February 2019 | |
CASE MAY BE CITED AS: | DPP v Cahill | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 50 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Aggravated burglary – Damaging property – No prior convictions – Lesser role in offending than co-accused – Lower end range of offending – 38 year old offender – Verdins not applicable – Relatively early plea of guilty – Admissions made – Good prospects of rehabilitation
Cases Cited:Hogarth v R (2012) 37 VR 658; R v CLP [2008] VSCA 113; R v Ellis (1986) 6 NSWLR 603; R v Fuller-Cust (2003) 6 VR 496
Sentence: Two year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Malik | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Thyssen | J Prior, Law and Advocacy Centre for Women |
HIS HONOUR:
1 Roxanne Cahill, you have pleaded guilty to an indictment containing one charge of aggravated burglary (Charge 1) and one charge of damaging property (Charge 2). The aggravated burglary charge has been laid on the basis that you entered as a trespasser a building, with intent to commit an offence involving intentional damage without lawful excuse to property belonging to another, and at the time of entering a person was then present in the building, and you knew that a person was then so present or you were reckless as to whether or not a person was then so present.
2 The maximum penalties for these offences are as follows: aggravated burglary, 25 years’ imprisonment; damaging property, 10 years’ imprisonment.
3 The prosecution filed a summary of prosecution opening for plea dated 29 January 2019 which I was told by your counsel I can treat as a summary of agreed facts.[1]
[1] Exhibit P1.
The Facts
4 At the time of the offending you were in a relationship with James Tipene. You and Tipene were living at the Hobson’s Bay Caravan Park (‘the caravan park’). The victim, Christian Fothergill, was also a resident of the caravan park and known to you.
5 On 9 March 2017, at approximately 5.50pm, you and Tipene were involved in a verbal argument with Mr Fothergill at the caravan park. During this argument Tipene picked up a lump of wood, and Mr Fothergill picked up a wheel brace. There was a confrontation between the two, but there was no physical assault committed at that time on Mr Fothergill. You and Tipene got into your car and drove away.
6 Some time later you and Tipene were joined by two males and another female. One of the males was carrying two shovels. The group, including you, walked towards Mr Fothergill’s caravan. On the way to the caravan Tipene armed himself with a metal pole.
7 At the time, Mr Fothergill was inside his caravan watching television with two friends, when he heard screaming outside. A window in the front bedroom was smashed, and then the window to the front door was also smashed. Mr Fothergill grabbed his cat and a meat cleaver from the kitchen before he and his two friends ran back to the bedroom of the caravan. As Mr Fothergill made his way to the bedroom he observed you outside the caravan with a rock in your hand, smashing the windows of the caravan.
8 I note that you are not charged in relation to any damage to the caravan, and that this evidence is simply led to support the Crown’s allegation that it was with the intent to damage property that you later entered the caravan.
9 Just before Mr Fothergill shut the bedroom door he observed three males coming through the front door of the caravan. All the males were armed with weapons, which included the two shovels and a pole. One of the men who had come through the front door was Tipene.
10 Shortly after the males entered the caravan you also entered the caravan. It is your entry of the caravan in these circumstances which gives rise to Charge 1 on the indictment (aggravated burglary).
11 Mr Fothergill slammed the bedroom door closed and pushed his body weight up against it, and dialled 000.
12 The male intruders used their weapons to force open the bedroom door, causing the door to break in half. Mr Fothergill was pushing his body against the door, using his body weight to try to keep the door shut. The force of the breaking caused Mr Fothergill to be thrown back across the room.
13 Tipene approached Mr Fothergill, swinging the metal pole at him. Mr Fothergill in turn stepped forward with the meat cleaver. A second male intruder tried to enter the bedroom. Tipene and the second male intruder were swinging their weapons at Mr Fothergill, who continued to step towards them with the meat cleaver, which caused the two male intruders to step back. Tipene started throwing glass jars at Mr Fothergill, four of which hit him on the forehead, causing a wound which bled. Mr Fothergill then picked up part of the door to use as a shield.
14 Mr Fothergill kept screaming ‘I’ve called the police, leave’, and ‘What have we ever done to you?’
15 Tipene and the other male intruders left the caravan and walked away towards the toilet block. Mr Fothergill remained in the caravan waiting for police to arrive. He could see and hear you outside, smashing the windows of the caravan and screaming. Once again there is no charge relating to your damaging the caravan, and once again these facts are led in support of the intent with which you entered the caravan by way of ex post facto reasoning. Of course, all of the elements of the crime of aggravated burglary were complete upon you entering the caravan with the requisite intent in the circumstances in which you entered.
16 The offenders, including you, also smashed the windows of Mr Fothergill’s mother’s van which was parked adjacent to the caravan. This gives rise to Charge 2 on the indictment, being criminal damage to the van.
17 A neighbour, Robert Smith, witnessed you and your co‑offenders at Mr Fothergill’s caravan. He used his mobile telephone to record the offending conduct, which shows you and your co‑offenders smashing and throwing items at the caravan whilst yelling and screaming. I have viewed the CDs of this video-recording in two parts,[2] and also viewed a photograph of the damage to the van.[3]
[2]Exhibit P4.
[3]Exhibit P3.
18 It is clear from the video footage, albeit taken from some distance away, that this was a sustained and terrifying attack on Mr Fothergill’s caravan and would have been a quite terrifying incident to him. However, I must be alert to the fact that you are only to be punished for the charges for which you have pleaded guilty, which are the aggravated burglary and the damage to the van.
19 At approximately 6.49pm police attended the caravan park. Mr Fothergill was taken to hospital by ambulance. It is clear from the Crown opening that he suffered a number of significant injuries; however, these are not relevant to my sentencing you. I understand that your co‑offender Tipene has been charged in relation to those injuries, and the Crown does not assert that you were complicit in his actions in this regard.
20 On 16 August 2017 you attended the Altona North Police Station where you participated in a record of interview. During the course of that interview you told police that Mr Fothergill had approached you earlier during the day of the offending and had threatened you and your family. You made admissions to smashing a window of the caravan, and also to entering the caravan, which admissions are the only evidence that the Crown can rely upon to support the charge of aggravated burglary. This is a matter I will deal with subsequently. However, you denied that anyone in your group had any weapons in their possession.
21 In his submissions on the plea, Mr Thyssen, who appeared on your behalf, sought to provide an explanation for your offending conduct by reason of matters which were said to have occurred earlier in the day. These asserted facts derive from what you told the police during your record of interview.
22 You told police that your offending came about due to problems in the caravan park, which was due to close, and by the fact that two alleged associates of Mr Fothergill had been seen by Tipene ‘casing’ caravans to possibly break into them. It was alleged by you that Tipene had warned these people off. You told police that this led to threats being made by Mr Fothergill to yourself and Tipene, which culminated in threats that day to you at shops in Newport. At the time of the offending, your second-youngest child was in hospital, having been born prematurely. This caused you considerable concern.
23 On Tipene returning home from work, you told police that you told Tipene about the threats you had received from the victim at the Newport shops. It was in these circumstances that you and Tipene and the others went to the victim’s caravan ‘to try to sort the matter out’. You told police that after a confrontation you left and returned with others, and that the confrontation escalated and led to the circumstances whereby the van was damaged and the victim was injured.
24 Mr Thyssen recognised that this explanation could only be mitigatory in the sense that your actions were provoked by the victim. Of course, provocation would not be a defence to these charges; however, it can be a mitigating circumstance. Since you are relying upon what you told the police in the record of interview as a mitigatory circumstance, the onus is on you to satisfy me of the underlying facts supporting that mitigation on the balance of probabilities.
25 I have read your record of interview[4] and also the statement of Christian Fothergill deposed to on 10 March 2017,[5] the statement of the neighbour, Robert Smith, deposed to on 9 March 2017,[6] and the cross-examination at the committal hearing held on 15 March 2018 of Mr Fothergill and Mr Smith.[7]
[4]Exhibit D5.
[5]Exhibit P5.
[6]Exhibit P6.
[7]Exhibit P7.
26 On the basis of the material before me, I am not satisfied on the balance of probabilities that your actions on this occasion were provoked by any conduct on the part of Mr Fothergill. Accordingly, I find that this was an unprovoked attack, albeit that I cannot find that there was any planning involved, and that it was a spontaneous attack on the caravan and the van, and for that matter Mr Fothergill, for which you are not liable, for reasons which are not apparent.
27 Since you are a person of otherwise good character, having no prior convictions or findings of guilt, I accept that this conduct on your part was out of character. I also accept that your role in the offending was much less than the others involved.
28 I also accept that at the time of the offending you were very concerned for the wellbeing of your recently-born child, who was in intensive care in hospital, having been born premature. I also accept that you were concerned about the fact that the caravan park was closing and that you were at imminent risk of becoming homeless. These concerns no doubt affected your judgment at the time, and may well explain why you went along with the conduct of Tipene and the other men accompanying him.
Victim impact
29 A victim impact statement from Mr Fothergill was tendered by the prosecution[8] and read by the prosecutor. It is clear that this incident has had a profound adverse effect on Mr Fothergill; however, I must be careful not to sentence you on the basis of effects on Mr Fothergill which are not referable to the charges for which you are before me. Clearly the significant physical injuries he suffered play the largest part by far in the effects on him of this incident overall. Nonetheless, it is clear, as one would expect, that he has suffered significant psychological consequences which are part and parcel of your conduct, and I sentence you on the basis that to some extent his post-traumatic stress disorder, depression, and anxiety, his feelings of anger, fear, confusion and grief, are somewhat referable to your conduct.
[8]Exhibit P2.
Offence seriousness
30 Aggravated burglary is a serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the community views this offence.
31 In the Victorian Court of Appeal case of Hogarth v R,[9] a case involving a ‘confrontational’ aggravated burglary, as is the case here, the Court said: ‘Home invasion is a particularly nasty form of criminal conduct’[10] and a particularly ‘egregious form of aggravated burglary’.[11]
[9](2012) 37 VR 658.
[10]Ibid, 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[11]Ibid, 660 [6].
32 Clearly, general deterrence, denunciation, and just punishment are important sentencing considerations in this case.
33 Criminal damage is also a serious enough criminal offence, and this was a bad enough example of it.
34 However, I accept that your role was much less than your co‑offenders’, that you were acting in circumstances where, by reason of the matters I have previously referred to, you were not in a position to bring sound judgment to what you were doing, and that your behaviour was out of character for you. Accordingly, I sentence you on the basis that this offending was very much at the lower end of the range of offending of this type.
Personal circumstances
35 You are presently 38 years of age, and were aged 36 years at the time of committing these offences.
36 Ms Lawrie, whose supportive letter was tendered on your behalf,[12] notes that you are an Aboriginal woman. This is confirmed by answers you gave in your record of interview. Accordingly, the principles set out by Eames JA in R v Fuller-Cust[13] apply in my sentencing you.
[12]Exhibit D2.
[13](2002) 6 VR 496, 520–523 [78]–[90].
37 You were born in Penrith, New South Wales. Your father was a labourer and your mother was engaged in home duties. You have one brother. You moved to Victoria at the age of three years and attended primary school and Sunshine secondary school to halfway through Year 12. You have worked intermittently in the hospitality industry.
38 You have four children: two to your co‑accused James Tipene, being Mia, who is 18 months old, and Tookie, who is 8 months old. Mia and Tookie are currently in the care of the Department of Health and Human Services as a result of unrelated offending allegedly committed by Tipene against Tookie. Mia is living with your parents and Tookie is living with Tipene’s mother. You see Mia and Tookie regularly and you hope to be reunited with them after this proceeding has been concluded.
39 You also have two older children from a previous relationship, being Blake, who has just completed Year 12 and is soon to undertake a computer course, and Jake, who is currently in Year 10 at Werribee secondary school. Blake and Jake reside with you.
40 Mr Tipene, who previously resided with you and the four children, is presently in custody awaiting sentence by another judge of this Court as a result of other offending. Both the prosecutor and your counsel submitted that no issue of parity arose in this case.
41 You currently are on a Newstart allowance and reside in Werribee.
42 I received in evidence a letter dated 29 January 2019 from Rafaella Lawrie,[14] your case manager with the Law and Advocacy Centre for Women. Ms Lawrie was present in court last Tuesday when you were arraigned. Her colleague, Katherine Ogilvy, was present in court supporting you during the plea hearing.
[14]Exhibit D2.
43 In her letter Ms Lawrie advises that LACW provides a voluntary and holistic case-management program, the aim of which is to assist women in the community to establish and maintain a healthy lifestyle by addressing factors that lead to offending such as homelessness and housing instability, mental health concerns, substance use, lack of education and employment support, and support in relation to family violence and family breakdown.
44 Ms Lawrie first met you in November 2017, and you were referred to her for ‘management support’ in November 2018.
45 Ms Lawrie reports that since November 2018 you have received support regarding your mental wellbeing as well as family/parenting support. Ms Lawrie sets out the difficulties you have had obtaining permanent housing, but notes that since March 2017 you have successfully maintained permanent housing through the Department of Health and Human Services.
46 Ms Lawrie also notes that you suffer from anxiety and depression. However, there is no formal diagnosis before me, and your counsel did not rely on any Verdins principles[15] at the plea hearing. Nonetheless, I take this into account in a general way as part of your personal circumstances.
[15]R v Verdins (2007) 16 VR 269.
47 LACW has referred you to the Victorian Aboriginal Childcare Agency in Werribee, and you have also been referred to the Koori Connect program, which can provide support regarding your wellbeing and parental support.
48 Ms Lawrie also advises that you have obtained a mental health care plan from your local GP and you have been referred to a psychologist. However, no further material was provided on the plea in this regard.
49 Finally, Ms Lawrie notes that you have engaged positively, and you have actively requested support around your mental health and family/parenting support.
50 I also received on the plea a letter dated 14 December 2017 from Ben Quinn,[16] a social worker employed by the homeless and community support team based at cohealth in Footscray. This service works with people who are homeless or at risk of homelessness and who have complex needs. You were referred to his program in November 2016 as part of a ‘multi-organisational response to the closure of the Hobson’s Bay Caravan Park’. Mr Quinn details the circumstances leading up to you acquiring accommodation in Werribee at the home where you presently reside.
[16]Exhibit D3
Mitigating circumstances
51 You have pleaded guilty, albeit at the door of the court on the first day of the matter being listed for trial before me. Nonetheless, in light of the way the matter has been settled by the Crown, I am of the view that it was forensically reasonable for you not to plead guilty to an indictment alleging that you entered the property with intent to assault a person therein. Accordingly, I will treat your plea of guilty to the aggravated burglary as being a relatively early one. Moreover, I was advised that you indicated an intention to plead guilty to the criminal damage of the van at the committal hearing in the Magistrates’ Court. That plea is clearly, on any view, an early one.
52 Your pleas of guilty have utilitarian benefit in saving court time and the victim from having to give evidence at a trial. Your pleas also indicate an acceptance of responsibility for your conduct by you and a willingness to facilitate the course of justice. However, I am unable to find that there is true genuine contrition and remorse in your case over and above such remorse as is evidenced by your pleas. Mr Thyssen accepted this was the case.
53 I find that in your record of interview you sought to minimise the seriousness of the incident, and particularly your role in it; however, you did make significant admissions and cooperated reasonably well with police. As I indicated earlier, a significant factor in your favour is that you admitted entering Mr Fothergill’s caravan in circumstances from which it could be readily inferred you had the requisite intent to damage property within. The Court in R v Ellis[17] opined:
Where it is unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.[18]
[17] (1986) 6 NSWLR 603.
[18] Ibid 604 (Street CJ, Hunt and Allen JJ agreeing), applied in Victoria in R v Lomax [1998] 1 VR 551, 561 (Ormiston JA, Winneke P and Hedigan AJA agreeing).
54 Moreover, in R vCLP[19] the Victorian Court of Appeal observed that considerable weight needs to be given to an accused person’s disclosure of offences which the Crown would not otherwise be able to prosecute. This is not quite a CLP situation, because the Crown was aware of the offending having occurred but not of your role in it. Nonetheless, the principles set out in CLP at paragraphs [22] and [23] have application in this case. Accordingly, you will receive a significant sentencing discount for your admissions in respect of the aggravated burglary.
[19] [2008] VSCA 113.
55 You have no prior convictions. At 38 years of age, this is a significant mitigating factor. I accept you are a person of otherwise good character and that these offence are out of character for you.
56 It was accepted by your counsel that your family responsibilities in relation to the two children that live with you and the two younger children who have been placed in care do not constitute exceptional circumstances such as to be a mitigating factor in and of itself.[20] Nonetheless, I do accept that if you received a sentence involving immediate custody there would be a significant degree of custodial hardship by reason of you being separated from your four children.
[20] See Markovic v The Queen (2010) 30 VR 589.
57 You have been on bail since your arrest and there is, therefore, no pre-sentence detention to be declared in your case.
58 According to the Community Correction Order Assessment Outcome Report dated 31 January 2019, which I ordered to be prepared, you are assessed as being at medium risk of re-offending. There is no detail in the report as to why you fall into this category, which I find surprising given your age, lack of drug or alcohol dependence, relative stability and lack of prior convictions. Accordingly, I will give no weight to this assessment.
59 I will sentence you on the basis that I need give virtually no weight to specific deterrence or protection of the community in your case. I assess you prospects of rehabilitation as being very good.
Application of sentencing principles
60 I have had regard to current sentencing practices in relation to the charges before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[21] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to these offences.
[21](2017) 91 ALJR 1063.
61 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
62 The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation, and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect on your victim, and your personal circumstances.
63 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
64 Given the serious nature of these offences, particularly the aggravated burglary, general deterrence, denunciation, and just punishment must be accorded significant weight in sentencing you. In your case I consider, in light of the circumstances I have previously referred to, very little weight needs to be given to specific deterrence and protection of the community. As I earlier noted, I sentence you on the basis you have very good prospects of rehabilitation.
65 Ultimately, I have concluded that the only appropriate sentence which will achieve the purposes for which these sentences are imposed is a community correction order. I have received a report in relation to your suitability for such an order, and have taken into account the recommendations made in that report as well as the submissions of the prosecutor and your counsel in relation to what the conditions of that community correction order should be. I note that the Crown submitted that a community correction order was within the range in your case, and that your counsel positively embraced that form of disposition.
66 Pursuant to s 40 of the Sentencing Act1991 I will impose the same community correction order on both charges, as they are founded on the same facts.
67 The terms and conditions of the community correction order will be as follows. It will be with conviction for a period of two years, with the usual core conditions, and the following specified conditions:
(i) You must perform 200 hours of unpaid community work over a period of two years as directed by the regional manager.
(ii) I will declare under s 48CA(2) of the Sentencing Act1991 that all of the hours you satisfactorily spend undertaking treatment and rehabilitation may be counted as hours of unpaid community work.
(iii) You must be under the supervision of a community corrections officer for a period of two years.
(iv) You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
(v)You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.
(vi)You must participate in a positive parenting program as directed by the Regional Manager.
68 Do you consent to me making a community correction order with those terms and conditions? [Prisoner consents]
69 Stand up Ms Cahill
On the charge of aggravated burglary (charge 1) and the charge of damaging property (charge 2) you are convicted and sentenced to a community corrections order in the terms I have previously detailed and as consented to by you.
70 Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a community correction order with conviction for a period of three years and 300 hours of unpaid community work and the other terms and conditions I have imposed in your case.
71 I will make the order sought by the Crown under s 464ZF (2) of the Crimes Act 1958 that you undergo a forensic procedure.
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