Director of Public Prosecutions v Carr

[2022] VCC 1118

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01252

DIRECTOR OF PUBLIC PROSECUTIONS

V

PETER CARR

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2022; 29 June 2022
DATE OF SENTENCE:	29 June 2022
CASE MAY BE CITED AS:	DPP v Carr
MEDIUM NEUTRAL CITATION:	[2022] VCC 1118

REASONS FOR SENTENCE
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Subject: Aggravated burglary – Make threat to inflict serious injury – Intentionally damage property – Contravene a family violence intervention order – Assault a female – Unlawful assault.

Catchwords:              Guilty plea –– confrontation of estranged partner in her home – threats and assault to her and another person at the premises - mid-level offending – high utilitarian value of guilty plea – relevant criminal history – positive steps to rehabilitation – strong protective factors of family

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes [2021] VSCA 169; Akoka v R [2017] VSCA 214; DPP v Alexander Petera Hikowai Manuel [2021] VSC 568; Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170; The Queen v Biba [2021] VSC 327; Horgarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486; R v Postiglione (1997) 145 ALR 408; DPP v Bradley Owen [2021] VSCA 355;

Sentence:                   2 years’ imprisonment, 2 year Community Correction Order with special conditions.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Singh	Office of the Director of Public Prosecutions
For the Accused	Mr J Murphy	James Dowsley

HIS HONOUR:

1Peter Carr, you have pleaded guilty to:

·one charge of aggravated burglary (Charge 1);

·one charge of make threat to inflict serious injury (Charge 2);

·one charge of intentionally damage property (Charge 3); and

·one charge of contravene family violence intervention order intending to cause apprehension or fear (Charge 4).

2You have also pleaded guilty to the related summary offences of:

·assault a female (Summary Charge 6); and

·unlawful assault (Summary Charge 7).

Circumstances of offending

3The circumstances of your offending are set out in the summary of prosecution opening.[1] They are agreed facts.

[1] Exhibit A.

4On 26 June 2019, at Frankston Magistrates’ Court, a two-year family violence intervention order was made against you for the protection of your three daughters and their mother, Angela Duggen[2].

[2] A pseudonym.

5On 31 August 2020, Ms Duggen was staying at a Carrum flat which Russell Jones[3] rented. It was her bail address in respect of criminal charges pending against her.

[3] A pseudonym.

6On that day, you were at the flat with Ms Duggen and Mr Jones. (Charge 4 – Contravene FVIO).

7After she abused you, you left and, during the next 12 minutes, you returned and left six times. When you returned you kicked the door and forced the front door and front window to try to get into the flat (part of Charge 3 – Intentionally Damage Property). You threatened to punch her in the head and stab her (part of Charge 2 – Threat to Inflict Serious Injury). You opened the front window tried to get into the flat. When she tried to shut the window you hit her with an open hand and clenched fist, to her side and head a couple of times (Summary Charge 6 – Assault a Female).

8You got inside the flat and wrestled with Jones (Summary Charge 7 – Unlawful Assault). You left when he told you to go.

9A few minutes later you returned and tried to open the window threatening to smash Ms Duggen’s head in (part of Charge 2 – Threat to Inflict Serious Injury).

10Over the next half hour you left and returned twice demanding to be let inside. You told Ms Duggen you wanted to go home with her. She refused and you left. You came back, forced the front door (part of Charge 3 – Intentionally Damaged Property) and got inside the flat (Charge 1 – Aggravated Burglary).

11Ms Duggen was holding a pole and told you to leave. She walked out of the flat and you followed her. You told you loved her. She told you to get out of her life and called you a “dog”. Over the next couple of minutes, the two of you walked in and out of the flat before you both left the flat going separate ways.

12You had damaged the front door and fly wire door. The cost of repairs was $502.10.

Victim impact statements

13The Court did not receive any victim impact statement.

Arrest and remand

14On 24 October 2020, police arrested you. At interview you said you were doing “renovations” on the property and not “burging” it. You were charged and remanded in custody.

15A committal hearing was conducted on 11 June 2021. Ms Duggen was not cross-examined. Mr Jones, and a neighbour, were cross-examined in relation to an allegation you had made a threat to kill. That charge was ultimately not prosecuted.

16On 16 June 2021, you were released on bail to reside at Odyssey House for residential drug rehabilitation.

17On 22 September 21, you left Odyssey House in breach of your bail.

18After a warrant was issued for your apprehension, you were arrested on 18 February 2022 and remanded in custody.

19You have spent 367 days in custody to be reckoned as presentence detention.

Criminal record

20You have admitted a criminal record of dishonesty, driving and family violence offences.

21Between 2016 and 2020, at 11 court appearances, you were convicted of 18 different family violence intervention order contravention offences and, at 10 court appearances, were convicted of 26 offences of either breaching bail or committing offences while on bail.

22You have served prison terms of 61 days, in 2016, 6 months, in 2018, and 4 months, in 2020, for family violence and dishonesty offences.

23All family violence offences were perpetrated upon Ms Duggen.

Personal circumstances

24You are an aboriginal man who was born in January 1979. You were 41 years old when you offended. You are now 43.

25Your personal circumstances as set out in the psychiatric report of Dr Nicholas Owens who interviewed you on 18 May 2022.[4]

[4] Exhibit 2.

26You were born in Endeavour Hills. You are the third of four children. Your father ran a fire protection equipment installation business. Your mother worked in the business. You were close to mother but felt frightened of your father who could be harsh and aggressive.

27You attended local schools where you struggled. You left after Year 8, unable to read or write. Your father taught you plumbing. After you completed your plumbing apprenticeship, you started your own business. As years passed, your relationship with your father mellowed and you grew close to him.

28He died two years ago following a bout of cancer, while you were in prison. You attended his funeral, in handcuffs, with prison officers.

29Your mother lives at Warragul. She is unwell. She is battling a brain tumour and, according to her treating GP, has “complex health management issues”.[5]

[5] Exhibit 4.

30She wrote a letter of support for you.[6] Her brain tumour was diagnosed in 2012. It has been managed with ongoing radiotherapy and chemotherapy. She also has cardiac problems.[7] She wrote, when you are released from prison, you intend to return home to help her.

[6] Exhibit 5.

[7] Exhibit 6.

31You have had three significant relationships. You have a son, now aged 22 years, from a brief relationship. You were in a stable relationship for 9 years with your second partner, with whom you bought a house. That ended when you cheated on her. Your third relationship was with Ms Duggen. Together, you have three daughters, aged 9, 6 and 3. The relationship was a stormy and conflictual, in the context of mutual drug problems.

32When you were arrested, notwithstanding the Family Violence Intervention Order against you, you believed your relationship with her was ongoing, but you have since learned she has moved on and is engaged to someone else.

33You have a long-standing history of substance abuse. You played a lot of football and lived healthfully until your 25. Since then you have drunk heavily. You’ve also abuse cannabis which you believe helped because it relaxed you. When were 35 years old you started abusing “speed”, or amphetamine, and then moved to “ice” or crystal methamphetamine.

34Substantially, because of your substance abuse, you have not worked for around five years.

35You told Dr Owens “Ice has wrecked my life, I’ve destroyed my family, I lost my own company, my house, my kids, my beautiful life…”. You said you would go for two weeks without any sleep while using methamphetamine. There were large periods of time for which you had absolutely no memory.

36In relation to your offending, you told Dr Owens Ms Duggen and you had been couch surfing at Mr Jones’ flat. You said the two of you argued all night. You had been using methamphetamine, cannabis and drinking gin. You said, “I couldn’t justify her staying with another male… I was very upset and angry”.

37You said, after you were released on bail, you had been doing well at Odyssey House but left to support your mother through her illness.

38Brendan Smithers, a senior therapist at Odyssey House confirmed, while you were there, from 16 to June to 22 September 2021, you participated and engaged well in the program. When you left you said you were going to spend time with your terminally ill mother.[8]

[8] Exhibit 9.

39On 18 June 2019, you had been playing the poker machines at the Chelsea Heights Hotel with a friend Ricky Thompson. When the two of you left, another man, who had also been at the hotel, got into an argument with Mr Thompson in the car park. You witnessed the other man fatally stab Mr Thompson in the head, piercing his brain. The offender got into Mr Thompson’s car, reversed it passing close to Mr Thompson’s body, which was lying on the ground, and drove off. Police arrested him on 4 July 2019 and charged him with murder.

40Subsequently, he pleaded guilty to manslaughter and was sentenced.[9]

[9] DPP v Alexander Petera Hikowai Manuel [2021] VSC 568, per Hollingworth J.

41You were a prosecution witness.

42In gaol, you have been assaulted by other prisoners, who have called you a “dog”, and their associates in the community.

43In Dr Owens opinion, as a result of the trauma of witnessing your friend’s killing and subsequent re-traumatisation by the retributive assaults on you, you have significant symptoms of PTSD including anxiety and depressive symptoms.

44A psychologist, David Ball, had assessed you in August 2019, when you were in custody.[10]

[10] Exhibit 3.

45He diagnosed you with PTSD, attributable to the homicide, Stimulant Use Disorder and Schizoid Personality Disorder.

46Dr Owens assessed your diagnoses of PTSD and drug use disorder as severe.

47Dr Owens does not think you have a Schizoid Personality Disorder. However, in his opinion, you have features of borderline personality reflected in your unstable and intense interpersonal relationships and problems with anger and impulsivity.

48In his opinion, to improve your mental health and promote your rehabilitation, you need psychiatric and psychological treatment to address the drivers of your substance abuse, which intensifies your PTSD.

49In January 2021, when you were assessed for CISP, you told the case manager you were sorry for your crimes and acknowledged your behaviour was unacceptable. You also showed insight into the connection between your substance and alcohol use and your offending.[11]

[11] Exhibit 11.

50Following your remand in February 2022, you were placed in protection within the prison system.[12]

[12] Exhibit 12.

51Within the confines of that environment, you have made progress toward you rehabilitation. You work in the prison bakery, you have reconnected with your culture through indigenous programs[13] and you have completed all vocational and behavioural courses[14] offered to you.

[13] Exhibit 7.

[14] Exhibit 10.

Defence Submissions

52Mr Murphy, who appeared on your behalf, in comprehensive written[15] and oral submissions, submitted, notwithstanding the seriousness of your offending a composite sentence of imprisonment and a Community Correction Order, conditioned to address your mental health issues would best protect the community and advance your rehabilitation.

[15] Exhibit 1.

53In mitigation of penalty, he relied on:

(a)   your early guilty plea for its utilitarian value, greater during the COVID-19 pandemic and as evidence of your acceptance of responsibility for your actions and remorse;[16]

(b)   the additional hardship prison will have on you, particularly in light of your protection placement and COVID-19 restrictions;

(c)   the period of your conditional liberty at Odyssey House;[17]

(d)   the steps you have taken since your arrest to reform; and

(e)   the operation of Verdins principles.

[16] Worboyes [2021] VSCA 169, at [35].

[17] Akoka v R [2017] VSCA 214.

Prosecution Submissions

54Mr Singh, who appeared for Director of Public Prosecutions, in helpful written[18] and oral submissions contended, considering;

(a)   the inherent seriousness of your offending which he characterised as a “medium level” example of aggravated burglary;

(b)   your long history of family violence offending against Ms Duggen; and

(c)   your dismal failure to comply with court orders,

the only appropriate sentence is one of an immediate it term of imprisonment with a non-parole period to be served.

[18] Exhibit B.

55He acknowledged there is significant utilitarian benefit to your guilty plea and there should be an additional benefit for a plea entered in COVID-19 times.

56He accepted additional prison hardship during the pandemic should also ameliorate your sentence.

57He accepted Verdins principles are engaged in your case.

58He submitted, your PTSD and personality disorder features likely impeded your ability to exercise proper and rational thought, and, accordingly, your moral culpability is reduced (Limb 1) and general deterrence (Limb 3) and specific deterrence (Limb 4) should be moderated, in a limited way.

59Additionally, he accepted, because of your psychological disorders, prison would be more difficult for you than a prisoner without them (Limb 5) and those disorders would likely deteriorate in prison (Limb 6).

Community Correction Order Assessment

60To enable me to properly consider the competing sentencing submissions I had you assessed for a Community Correction Order.

61The assessing officer, Rachel Kuang, gave evidence.

62She told me your Community Correction files were extensive.

63You have previously been sentenced to three Community Correction Orders. In four instances, in 2014, twice in 2016, and in 2018, you were found to have breached those orders.

64When you are released on a Community Correction Order in 2018 you said you would live with your mother. You stayed with her for only one day, your attendance for Community Correction Service supervision was sporadic and you made no progress towards the treatment conditions of your order.

65Considering Community Correction Orders have not deterred you from further offending and your compliance has been poor you were assessed as “unsuitable at this time”.

Consideration

66The maximum penalty for the offence of aggravated burglary is 25 years’ imprisonment. Making a threat to kill carries a maximum penalty of 10 years’ imprisonment.

67A confrontational aggravated burglary, as this was, is inherently serious.[19]

68You intended to put Ms Duggen in fear of serious harm. You have a history of similar offending against her.

69Your conduct was impulsive rather than premeditated and the degree of your violence was less extreme than in many cases. In my view, it was a low to mid range example of the crime.

70There are a number of mitigating factors in your favour.

71You are entitled to a substantial sentencing benefit for your guilty plea. It has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[20] It has also saved Ms Duggen and Mr Jones the anxiety of giving evidence at trial.[21]

[20] Worboyes [2021] VSCA 169, at [35] and [39].

[21] Carter (a pseudonym) v The Queen [2018] 272 A Crim R 170.

72You are also entitled to some moderation of your sentence for the public-health pandemic related hardship of prison, due to removed prison visits, reduced prison programs and increased isolation, during the pandemic.[22] The further confinement and isolation of your protection prison status carries weight.

[22] The Queen v Biba [2021] VSC 327, at [38].

73I am satisfied your psychological disorders should moderate the sentence I impose in several ways, namely: 

(a)   they compromised your ability to make rational decisions, your moral culpability is reduced (Limb 1);

(b)   while, general deterrence, because of the seriousness of your offending[23] and specific deterrence, because of your history of similar offending, are important sentencing considerations, both should be moderated (Limbs 3 and 4); and

(c)   imprisonment may weigh more heavily on you the person in normal health (Limb 5) and there is a serious risk imprisonment will have a significantly adverse impact on your mental health (Limb 6).

[23] Horgarth v The Queen (2012) 37 VR 658 and DPP v Meyers (2014) 44 VR 486.

74When you offended, you were homeless and abusing drugs and alcohol. I am satisfied drug and alcohol abuse contributed to your offending. While in prison, you are in enforced remission. You require treatment and supervision to advance your prospects of rehabilitation and reduce your risk of reoffending.

75As you are to be sentenced for a number of offences, applying the totality principal, I must ensure your overall sentence is “a just and appropriate measure of your total criminality”.[24]

[24] R v Postiglione (1997) 145 ALR 408, at 416 – 17.

76I will impose an aggregate sentence for your crimes because they arose from a single episode.

77In doing so, I bear in mind your contravention of a Family Violence Intervention Order is constituted by your assault on Ms Duggen at Carrum Downs on 31 August. You are not to be doubly punished for that misconduct.

78I have decided a composite sentence of imprisonment and a Community Correction Order, with its punitive and rehabilitative components, can achieve all sentencing purposes in your case.[25]

[25] DPP v Bradley Owen [2021] VSCA 355, at [12]-[13].

79In my view, after further time in custody, with enforced drug and alcohol abstinence and, hopefully, continued progress toward your rehabilitation, you will be better placed to complete a Community Correction Order.

80Mr Carr, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

81Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,

(a)   on the charge of aggravated burglary (Charge 1)

(b)   on the charge of make threat to inflict serious injury (Charge 2)

(c)   on the charge of intentionally damaged property (Charge 3)

(d)   on the charge of contravening a family violence intervention order (Charge 4); and

the summary charges of:

(e) assault of a female (Summary Charge 6)

(f) unlawful assault (Summary Charge 7)

you are convicted and sentenced to 2 years’ imprisonment in combination with a Community Correction Order.

82The duration of the Community Correction Order is 2 years. It will commence upon your release from prison.

83In addition to the core conditions I impose the following special conditions:

(a)   supervision

(b)   drug and alcohol treatment and rehabilitation

(c)   mental health treatment and rehabilitation

84I also impose a condition conditions:

(a)   you must reside at your mother’s address, [street address omitted], Warragul or any address approved by your Community Corrections Service Case Manager; and

(b)   you must attend this court for judicial monitoring on 25 August 2023 at 9:30 AM.

85Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare you have already served 367 days of your sentence by way of presentence detention.

86While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 4 years and imprisonment and fixed a minimum non-parole period of 3 years.

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