Director of Public Prosecutions v Cox
[2015] VCC 1608
•18 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01636
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JODY COX |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2015 | |
DATE OF SENTENCE: | 13 and 18 November 2015 | |
CASE MAY BE CITED AS: | DPP v Cox | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1608 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms L. Dipietrantonio | Office of Public Prosecutions |
| For the Accused | Mr R. Lawson | C Marshall & Associates |
To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the victims and family
HER HONOUR:
1 Jody Cox, you have pleaded guilty to two charges of aggravated burglary, one charge of attempted indecent assault and one charge of theft on Indictment F11993344. The maximum penalties applicable to those charges are, aggravated burglary, 25 years' imprisonment, attempted indecent assault, five years' imprisonment and theft, ten years' imprisonment.
2 You have also, pursuant to s145 Criminal Procedure Act 2009, pleaded guilty to a summary charge of trespass, and agreed that that was also to be dealt with by me. The maximum penalty applicable to the offence of trespass is six months' imprisonment and/or 25 penalty units.
3 These crimes arise out of events which took place on 29 May 2015 at the Long Island Retirement Village in Seaford.
4 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A).
5 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
6 I turn then to a brief summary of your offending. At the time of it you were 44 years of age. You did not know any of the victims or residents of the retirement village and on the day of your attendance had no reason to be there.
7 The victim in relation to Charges 1 and 2, Beverley Kennedy[1], was 84 years of age at the time and lived in a unit at the retirement village. Ms Kennedy has Parkinson’s Disease.
[1] Beverley Kennedy is a pseudonym.
8 The victim in relation to Charge 3, Deborah Conrad[2], was 61 years of age and was living with her sick elderly mother at the retirement village. At the time, Ms Conrad was asleep in bed with her 17 year old daughter, Samantha[3]. Samantha is hearing impaired and has Downs Syndrome. She is the victim relevant to Charge 4.
[2] Deborah Conrad is a pseudonym.
[3] Samantha is a pseudonym.
9 Deborah Conrad’s 88 year old mother and 32 year old daughter were also present at the unit at the time.
10 The victim in relation to the summary offence, Brenda Hess[4], was 87 years of age and also lived in a unit at the retirement village.
[4] Brenda Hess is a pseudonym.
11 On Friday, 29 May 2015 between 9.30 and 10 pm, you parked a tow truck in Benton Avenue, Seaford, adjacent to the retirement village, jumped over the high perimeter fence and entered the retirement village grounds.
12 You were not wearing any underwear, but were wearing a dark coloured beanie, dark coloured hoodie, pants and work boots.
13 Turning to Charges 1 and 2. You attended at one of the units and gained entry through an unlocked back sliding door. Ms Kennedy was in her bedroom. She had dozed off, but woke when she heard the sliding door open, however dozed off again.
14 You entered the meals area, walked through the lounge room and stood in the doorway of Ms Kennedy’s bedroom. Ms Kennedy woke and saw you standing at her bedroom door. You said you were looking for “Matt”. Ms Kennedy told you that there was no “Matt” here. You said several times, “I'm not going to hurt you.” You moved into the room, dropped your pants, exposed your erect penis and commenced to masturbate in front of Ms Kennedy and asked her to help you masturbate.
15 Ms Kennedy yelled at you, “No, get out” or “No, go away”. Ms Kennedy said, “I felt so vulnerable and scared. I was thinking that this shouldn’t be happening and why me, sort of thing.” Ms Kennedy grabbed her walking stick and brandished it towards you, screaming at you to get out. You stumbled backwards into the lounge room.
16 Ms Kennedy went to the front door, but had trouble unlocking it, as she was so scared and her hands were shaking. She said, “I was so scared. I thought that if he pushed me or something, it might cause me some damage.” You told Ms Kennedy she looked lovely in her pyjamas, then left the unit. This is very serious and disturbing offending. It is understandable, in my opinion, the victim was scared, as she described.
17 Turning to Charges 3 and 4. You then went to another unit in the retirement village and entered by breaking a locked rear sliding door.
18 Deborah Conrad, as I said, was asleep in bed with her daughter, Samantha. Samantha was using her iPad. Deborah Conrad’s sick and elderly mother was in the lounge room watching television and Ms Conrad’s eldest daughter, Amanda[5], was in the second bedroom.
[5] Amanda is a pseudonym.
19 You walked through the meals area and into Deborah Conrad’s bedroom. Ms Conrad woke when she felt you sit at the end of her bed. You said, “Margaret sent me down to find a bed for the night.” Ms Conrad told you she did not know a “Margaret”, and that she did not have a spare bed and yelled at you to “Get out”. Deborah Conrad stated, “I was so scared and feared that the man would sexually assault me or my daughter. I froze because I thought that if I moved, he would hurt my daughter or me.”
20 You then left the bedroom and on the way out, stole a pair of pink coloured female underwear belonging to Samantha Conrad. You placed the underwear in your pants pocket and left the unit. I have no doubt the victims of your offending were also scared, as described by them, by your attendance in their home.
21 Turning to the summary charge of trespass, at some stage during that night you went to another unit at the retirement village and loitered outside the rear yard. The elderly male occupant, Ivan Baumgartner, saw you looking into several windows of other units. He went outside, approached you and yelled, “Are you looking for someone?” You quickly walked away.
22 You then went to another unit and entered the garage through an unlocked door. Inside the garage you opened a cupboard, knocked over bags of potting mix and put your hand on the bonnet of the motor vehicle parked inside. You then left the garage and stood outside the kitchen window of that unit.
23 Between 10.50 pm and 11.15 pm, Ms Hess was in the kitchen of her unit and saw you outside her kitchen window and told her daughter. Her daughter went outside and confronted you. You said you were hiding from police for “D and D”. Her daughter observed police had arrived and she approached them. You hid behind a bush.
24
When police spoke to you, you told them, “I'm with them”, meaning with
Ms Hess and her daughter.
25 You were arrested at the scene and when searched, the police located a pair of pink female underwear, taken from the unit at the village. You said you took them from a washing line to use as a handkerchief.
26 You were placed into the divisional van. When asked how you got to the retirement village, you said, “In my truck. It’s parked in the street just over there. I just jumped the fence to look for a drink of water.” Your truck was subsequently located in Benton Avenue.
27 You were taken to Frankston Police Station. Before the interview, you told police:
“I parked the truck because I wanted something out of the side. I was talking to a lady over the fence. I told her I'd like a glass of water. She said I was welcome to come and have a drink. She said she was at Unit 53 … I walked around to the front entrance and went in there but I couldn’t find Unit 53 … I went to one of the units. I said "hello" and a lady said "hello" back. I went into her room and said that I wasn’t going to touch her. Then she picked up a walking stick and started swinging it at me and I left…(went to) just to units ...”
28 During the interview at the police station, when you stood up, your jeans fell to the ground and you were not wearing any underwear.
29 During the interview, you gave a number of answers, as contained within paragraph 24 of the prosecution opening. I will not repeat them all, but some are, you said you had been invited into Unit 53 for a glass of water after you had parked your tow truck, yet you could not find Unit 53, so you walked around for a while but said you got disorientated. You were walking around when you heard a voice saying, “Esme, there’s somebody in the yard.” You thought you would knock on someone’s door to find a way out. You said you had removed your underpants earlier that day.
30 Regarding Charges 1 and 2, when you went to that unit, you said you knocked on the door and the lady said, “Hello, I'm here”, so you walked in. When she asked who you were, you said you were looking for Esme’s unit, but you said she got scared and told you to get out. You said she grabbed her walking stick and had trouble unlocking the front door. You then left.
31 When it was put to you that Ms Kennedy was very upset, you said, “Yeah, I'll say, she grabbed the walking stick and … belt me with it ... you could see she was straightaway panicked, hit the panic mode ...” You also said she would have been afraid.
32 When asked what you were doing with your hands, you said you were trying to stop your pants falling down and that you pulled them back up when they fell down. You denied that you dropped your pants, had an erection, and masturbated or asked her to help you.
33 In relation to Charges 3 and 4, you said after leaving that unit, you walked around for five to ten minutes, then decided to tap on another door to ask how you got out of here, that you went to a unit, opened the door and said, “Hello”.
34 You said you asked Deborah Conrad how “to get out of the unit … looking for Esme’s unit …” and that you were not going to hurt them. Then all of a sudden she started screaming and yelling at the top of her voice "What are you doing here, get out." You said you went into the bedroom and sat on the bed. You also said you were hiding from police and asked her if you could, “sit on the floor for a little”. Initially you said her response was “Yes” but then, “all of a sudden she said, ‘You shouldn’t be here’”.
35 Regarding the pair of pink women’s underpants in your pocket, you said you grabbed them off the line, just as you were going past, going to use them as a hanky.
36 Regarding the charge of trespass, you said you believed police were looking for you and could hear your name being called out. You recalled an elderly gentleman from a unit approaching you and asking you what you were doing. You said you tried to hide in a garage.
37
Regarding the woman who said she had seen you through the blinds, you said her daughter came out and she asked, “Who are you?”, and you said,
“I just want to get out of here.”
38 After the record of interview, police spoke to the resident of Unit 53. The occupant lived alone in that unit and did not know anyone by the name of Esme and was not expecting any visitors on that night.
39 The victims of your offending have suffered considerably in the manner described in their victim impact statements and I shall return to that in more detail shortly.
40 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The matter was resolved on 18 September 2015 at a committal mention stage at the Melbourne Magistrates’ Court. Therefore, I take into account you indicated your intention to plead guilty to these charges at an early opportunity.
41 The community, by your pleas of guilty, has been spared the time and cost of a trial and witnesses, in particular the victims of your offending, have been spared the ordeal of having to give evidence upon your trial.
42 You were quickly apprehended and when apprehended admitted your presence at the property, although in my opinion, proffered some concerning answers regarding your reasons for being there.
43 I accept your pleas of guilty indicates remorse for your offending and note that you have also expressed your remorse to Mr Simmons, however, I have concerns regarding the extent of your remorse, given your lack of insight into, and explanation for, your offending.
44 As at the time of the plea hearing, you had spent 166 days in custody by way of pre-sentence detention, relevant to these charges, from 29 May 2015 to 10 November 2015 inclusive.
45 You have also admitted six prior court appearances commencing in 1994, the most recent on 18 September 2012. I note that none of that prior offending involved offences of a similar type to that before me. The penalties imposed for those prior matters have involved a community-based order, undertaking, fines and a suspended sentence. This is your first time in custody.
46 By virtue of your plea of guilty and conviction on the charge of aggravated burglary and attempted indecent assault (ie: three Class 4 offences), the prosecution makes an application that you be subject to the Sex Offenders Registration Act. The making of such an order is discretionary, however should an order be made, the relevant reporting period is eight years.
47 Mr Lawson, who appeared on your behalf at your plea hearing, urged I not make that order, and I shall return to that later in these sentencing remarks.
48 Also, by virtue of your plea of guilty to the charges of aggravated burglary with intent to commit a sexual or indecent assault, and attempted indecent assault, those are sexual offences for the purposes of the serious sex offender provisions of the Sentencing Act 1991 (Schedule 1, Clause A XVII, and Schedule 1, Clause F).
49
Following a term of imprisonment being imposed on Charges 1 and 2, you are thereafter to be sentenced as a serious sexual offender in relation to
Charge 3. Mr Lawson agreed such would apply to you, if so sentenced on Charges 1 and 2.
50 As such, the provisions of ss.6D, 6E and 6F Sentencing Act 1991 apply. In that regard, on the charge on the indictment for which you fall to so be sentenced as a serious sexual offender, the Court must regard the protection of the community as the principal purpose of sentencing. In order to achieve that purpose, the Court may impose a longer sentence than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
51 I note the prosecution, represented by Ms Dipietrantonio at your plea hearing, was not seeking a disproportionate sentence be imposed. Mr Lawson acknowledged, with approval, that the prosecution were not seeking a disproportionate sentence. I am also of the opinion I am able to sentence you without the need to impose a disproportionate sentence.
52 Your counsel, Mr Lawson, prepared a written outline of submissions for your plea (Exhibit 1). Mr Lawson acknowledged your offending behaviour was serious, and it is. He described your behaviour in relation to your conduct in the presence of Ms Kennedy as "bizarre". I regard it as very concerning and troubling. There are many aspects of your offending that cause me concern, which include your explanation for it when spoken to by the police. The lack of meaningful explanation concerns me when assessing your rehabilitation prospects and risk of further such offending.
53 You are 44 years of age at time of sentence.
54 You initially lived in the Ballarat area when you were very young, then moved to Aspendale, after your father left your mother. You are the youngest of seven siblings. Your mother was later in a brief relationship with Mr Mitchell and then in a longer relationship with Mr Sannino until 2012.
55 You attended secondary school until partway through Year 9. Thereafter, your work record, I was told, had been solid and included driving trucks in the last eight years.
56 You have had four reasonably long-term relationships with women since your teenage years, the most important and significant with Ms Catherine Leffeo for three to four years from 2002. There is a daughter of that relationship who is 10 years of age, although you say you do not have any contact with her.
57 Mr Lawson tendered on your behalf, a report of Warren Simmons, Psychologist, dated 31 October 2015. I discussed that at length with him and the transcript will reveal that discussion.
58 Mr Simmons interviewed you in custody on 31 October 2015. He had access to a summary of the charges and criminal history report, although I note, it was possible/probable he did not have access to your record of interview and the reasons given for your offending, or at least being there, and your denials of some of the offending. He certainly did not address your answers in the interview in his report.
59 Further details were provided in the report of Mr Simmons regarding your background and history. Your mother is in her late-70s and through her working career, was employed as a nurse. You instructed you last saw her three years ago, when she rejected all her sons as a result of an issue that arose following the death of her husband and his estate. This was confirmed in essence in evidence from Ms Jennifer Cox. Your mother and Mr Sannino were, I gather, together for 29 years until he passed away in 2012.
60 Your father is in his late-70s and worked as a truck driver in his working life. You instructed you had not had contact with him for the last ten years.
61 Your memories were of your father being a violent man towards your mother and the children. You also recalled he was a heavy drinker.
62 You described your relationships with Mr Mitchell and Mr Sannino as "good".
63 You generally described your relationship with Mr Sannino as a very positive one, although not “father and son”.
64 Following the separation of your parents, you had contact with your father over the years but it was infrequent and not regular. You had not had any contact with any of your paternal extended family.
65 You attended a number of primary schools as a result of the family moving house. As a result, you often truanted and welfare services tried to make you a Ward of the State, however, your mother opposed that. On the days when you were absent from school, you would often go to the nursing home where your mother worked and talk to the patients - probably residents.
66 You attended Bonbeach High School to Year 9, leaving to obtain employment, initially as a store person. Thereafter you worked at a car wreckers, as a truck jockey, in the meat industry, as a labourer, working for a signage company, until you obtained your truck licence. For the past eight years you worked in that capacity.
67 Your last job as a truck driver was about a month before you were incarcerated. You instructed you had worked at the same company as a truck driver for five years until November 2014, when you lost that position due to your drug use.
68 Despite some periods of unemployment, you described having been employed for most of your working life.
69 Reference was also made within the report of Mr Simmons to your relationship history (p.3). Your relationship with Ms Leffeo ended when your daughter was about 11 months of age. You said you had regular contact with your daughter for about 12 months after that, however, the situation deteriorated after financial settlement was completed.
70 You were introduced to alcohol by your brothers at age 16, often drinking to excess. You had decreased your consumption considerably. You also used cannabis from about the age of 18, and at the same time you were introduced to amphetamines.
71 Following your break-up with Ms Leffeo, you returned to amphetamine use as a form of escape and also alcohol consumption. Approximately a year ago you began using methamphetamine. It was as a result of that drug use you lost your employment in November 2014. You said your use of that drug continued until you were remanded in custody in May 2015.
72 You had not been involved in any drug and alcohol treatment programs in the past.
73 You told Mr Simmons you had a history of hearing voices including recently whilst in custody.
74 Of particular concern to me is that you were not able to provide Mr Simmons with any insight into your actions on the night of this offending. You said you had used methamphetamines that evening, however had no idea why you ended up in the retirement village, nor why you went into any of the houses.
75 You said you were ashamed of what you had done and that you recognised you had caused distress and scared the people involved. You expressed remorse with regard to the impact your offending had on the victims. I accept you are remorseful regarding the impact upon your victims.
76 Mr Simmons concluded your offending appeared to have been predominantly related to substance use, as you had no significant history of anti-social behaviour. He concerningly noted, again, that you could not offer any insight into your actions and could not provide any explanation as why you acted as you did.
77 You did not use methamphetamine use as an excuse for your offending although, in the opinion of Mr Simmons, it was likely a contributing factor, but that was not elaborated upon. You could not provide any insight into your actions and specifically could not provide any insight into your actions that were sexually based. In his opinion, from discussion with you, there was no evidence of any pattern of deviant arousal.
78 That conclusion concerns me, as it is possible Mr Simmons did not have access to your record of interview to further analyse those answers, or if he did have that material, he did not refer to it. More significantly, you could not explain your actions, in particular your sexual offending and sexual behaviour.
79 As discussed with counsel, it is difficult from the lack of information before me, to conclude that you are a low risk of re-offending.
80 In the opinion of Mr Simmons, you would benefit from ongoing drug and alcohol counselling. He also suggested referral to a psychiatrist to investigate your recently stated psychotic phenomena, as you had been substance-free for some time.
81 In his opinion, there was no evidence that you were at risk of committing further sexual offences, despite you not being able to provide insight into why you acted as you did. How this conclusion can be reached definitively concerns me, although I do note your lack of prior criminal history for offending similar to that before me, but that this offending was different from your prior offending and without explanation, causes me concern when assessing your future risk.
82 Mr Lawson conceded the only appropriate disposition was a term of immediate imprisonment. He urged that when determining the appropriate length of that imprisonment, I have regard to your early plea of guilty and, of course, I do.
83 Mr Lawson submitted you had, at the time of the plea, spent 166 days in custody since 29 May and that I could order a further term of imprisonment, together with the imposition of a community correction order.
84 Mr Lawson also addressed his written submissions during the course of your plea hearing. Present in court to support you was your sister-in-law, Jennifer Cox, married to your older brother, and a friend of hers. Ms Cox gave character evidence, to which I shall shortly refer.
85 Mr Lawson referred to you having been in lockdown for most of the time that you had spent at the Melbourne Remand Centre. Apparently a previous application for bail had been made in June, but refused.
86 He conceded your offending behaviour would have been terrifying and frightening for your victims.
87
Turning to the report of Mr Simmons, Mr Lawson also expressed concerns about material that was lacking in that report. I also discussed with
Mr Lawson my concerns regarding a favourable conclusion regarding your rehabilitation prospects and that I had difficulty forming any concluded view as to risk, in particular, any concluded view that you were at low risk of
re-offending in a similar fashion, given your lack of insight and explanation for this offending.
88 Mr Lawson submitted that at the time of this offending, your employment had been terminated with the trucking company about four to five months prior, and you were getting any work you could as a tow truck driver. You said you had stopped at the retirement village that night on the way to a major road where, I assumed, you were going to "wait" for work. You were at that time living in a caravan park and I was told work had been sporadic.
89 It was in those circumstances you said you returned to the use of illicit drugs and in February, March and May, were using drugs.
90 Mr Lawson conceded that even having taken drugs that day, you had the wherewithal to appreciate where you were and what you were doing.
91 Evidence was given by Jennifer Cox. She is a disability support worker and you are her brother-in-law. She had known you since you were approximately 14 years of age and has children of her own aged 28, 25, 16 and 13.
92 She and her husband had been visiting you at the Melbourne Remand Centre. She described the falling out between your mother and the other adult children, following the death of your step-father, Mr Sannino. She understood there had not been any contact between you and your mother for three to four years. This offending, she said, was out of character for the person she knew.
93 Ms Cox had sat through the opening of this plea when the prosecution read out Exhibit A into the transcript. She conceded she was not aware of the extent of your offending. She understood your offending had involved some type of break and enter and that police were involved. She did not know the details that were placed before me. She was also unaware of your prior court appearance for assault.
94 There were a number of victim impact statements before me.
95 There was a victim impact statement from Deborah Conrad. She described feeling anger and fear that someone she did not know was able to get into her bedroom without making a noise and sit on her bed. She was also concerned because she had a disabled daughter next to her at the time. She and her daughter had nightmares about what you did. Her daughter, Samantha, did not like being left on her own in the unit since your offending. She had to replace a security door and the locks on it as a result of your offending.
96 There was a victim impact statement from Amanda Conrad, daughter of Deborah Conrad. She said she no longer felt safe as a result of your offending and had moved into accommodation with 24/7 security to try and feel safe. She "jumped" at night if she heard noises outside and was still trying to help her sister, Samantha, gain trust in people. She was also supporting her mother and grandmother. Your offending had left her feeling nervous of who was around and that feeling was worse at night. She had to leave her social groups to care for her sister, Samantha, who did not want her to leave her. She found it hard to leave the house at night or be left alone at night. She was always checking to make sure her doors and windows were locked, even if she had already checked them before going to bed.
97 There was a victim impact statement from Samantha Conrad, who described having lost trust in people, even when in her own home, that she was fearful. She could not sleep without someone being by her side at night.
98 There was also a victim impact statement from Elizabeth Franklin[6], daughter of Beverley Kennedy. She described that her mother’s self-sufficiency ended when confronted by you, a person she did not know, in her home. As a result of your offending, her mother became a woman dependent on others, who needed to be looked after, requiring full-time care and a high level of security. Ms Franklin was also then required to organise this care and security and moving of her mother's belongings to a nursing facility.
[6] Elizabeth Franklin is a pseudonym.
99 Her mother has experienced a level of distress at the thought you will find her at her new home and required constant reassurance that you will not attend.
100
Ms Franklin’s life has also changed as a result of your offending, requiring her to visit her mother multiple times a week to ensure her mother’s stress levels were down. Her mother had been robbed of her sense of security and
well-being.
101 The effects upon a victim are a relevant sentencing consideration, see s5 Sentencing Act 1991. Also relevant is the importance of social rehabilitation referred to by his Honour Justice Vincent in DPP v Toomey[7], citing DPP v DJK[8]. I am conscious, however, that I must now allow the effects upon a victim to swamp the sentencing process.
[7] [2006] VSCA 90
[8] [2003] VSCA 109, [17] and [18]
102
Regarding your rehabilitation prospects, I have real concerns. It is correct you do not have any prior charges for the type of offending that is before me, however it is that lack of similar prior offending and your lack of explanation or insight for this current offending that troubles me regarding your rehabilitation prospects. But in concluding, your rehabilitation prospects are guarded,
I have also taken into account the conclusions of Mr Simmons.
103 I must, however, when fixing an appropriate sentence, seek to maximise such chances of your rehabilitation as they may be, and in doing so have not lost sight of matters, including your good work history.
104 Ms Dipietrantonio submitted that the combination urged by Mr Lawson of further gaol time, together with a community correction order, was outside the range of appropriate dispositions. The prosecution position was that an immediate and substantial term of imprisonment was warranted for your offending and the only appropriate disposition.
105 Ms Dipietrantonio, of course, conceded that the indecent assault was an “attempt” and of course the charge is attempt, however, she submitted your offending was a serious example of that offence in the circumstances of the case. I agree.
106 Turning to the report of Mr Simmons, Ms Dipietrantonio, submitted there was a lack of reference to the record of interview and whether or not he had read it, at least any conclusions drawn from it, if such had been available to him.
107
Ms Dipietrantonio submitted I should regard with caution a conclusion by
Mr Simmons that you are a low risk of re-offending and that I should further conclude your rehabilitation prospects were uncertain. I have referred to my conclusions in those regards.
108 Ms Dipietrantonio submitted the principles in Verdins & Ors[9] did not have any application in this case. I agree, nor were any of those principles urged by Mr Lawson.
[9] (2007) 16 VR 269
109 Ms Dipietrantonio conceded this was your first time in custody. It is.
110 Ms Dipietrantonio submitted there had been no explanation for your offending. That the offending, according to the victims, she said, was no doubt frightening and horrifying. Your offending, she submitted, was very serious and there was the need for general deterrence, denunciation and specific deterrence when sentencing you.
111 Turning to the offence of aggravated burglary, Ms Dipietrantonio submitted this offending was of “mid-range gravity” regarding sentence. It was also a home invasion where the occupants were entitled to feel safe and secure.
112 She referred to there being two entries (Charges 1 and 3), being into the bedrooms of the occupants, as opposed to one occasion. The victims, she urged, were vulnerable victims as in they were older victims, and as such, she submitted, that was an aggravating feature.
113 Ms Dipietrantonio submitted that you would have known the various units would be occupied by the elderly or older persons and, if you did not know that at the start, you would have by the time of the second entry. Further, she referred to the lack of any known motive or explanation for your offending.
114 Ms Dipietrantonio conceded your offending was spontaneous. I proceed on that basis. However, as I discussed with counsel, I do note you attended the premises without any underwear on this particular occasion, between 9.30 and 10.00 pm, which is perhaps somewhat curious.
115 Ms Dipietrantonio referred to your trespass being serious, as part of your conduct on this particular night, and that the impact on the victims has been profound, as stated within their respective statements. It is.
116 Ms Dipietrantonio conceded, of course, you do not have any prior criminal history for related offences. That is correct.
117 Further, Ms Dipietrantonio referred to the lack of insight into your offending and that your use of drugs on this occasion, and that you have been using drugs, did not alleviate any potential risk.
118 I discussed with both Mr Lawson and Ms Dipietrantonio the principles in Boulton & Ors v R[10].
[10] [2014] VSCA 342
119 The Court of Appeal considering that decision in Alam v R[11], referred to the need to "rethink" the conventional wisdom about whether prison is really the only option and to advance an offender’s rehabilitation (see also DPP v Maxfield[12]). I also note the statement by Court of Appeal Priest J in Hutchinson v The Queen[13], that it should not be thought that Boulton offers a "get out of jail free" card.
[11] [2015] VSCA 48
[12] [2015] VSCA 95
[13] [2015] VSCA 115
120 I did not understand Boulton to mean that principles previously stated relevant to particular offences now amounted to nought, nor did I understand Boulton to remove the need to consider s5 Sentencing Act 1991, nor did I understand Boulton to remove the instinctive synthesis in sentencing.
121
Of assistance, as I have said, in determining the appropriate disposition, are the pronouncements of the Court of Appeal regarding reference to the seriousness of the offences involved, such as aggravated burglary, and
Ms Dipietrantonio also referred to a number of authorities in that regard.
122 In Hogarth v R[14], the Court referred to sentencing for aggravated burglary and the need to reflect the objective seriousness of the offence.
[14] (2012) 37 VR 658
123 Hogarth was discussed by the Court in Anderson v The Queen[15] and DPP v Meyers[16].
[15] [2014] VSCA 255
[16] [2014] VSCA 314 [25++]
124 The Court in Meyers also referred to assessing the seriousness of a particular instance of aggravated burglary, in particular, paragraphs 47 and following.
125 In the circumstances of this case, in my opinion, your offending was serious, albeit I of course accept, as urged by Mr Lawson, your offending did not involve any actual assaults or violence on your victims, after entering their homes.
126 As I said, Ms Dipietrantonio referred to a number of other cases which discuss the offence of aggravated burglary, Singh v R[17], Maurice v The Queen[18] and Stevens v The Queen[19]. It is clear the Court of Appeal has frequently referred to the offence of aggravated burglary as a very serious one. In Maurice the Court stated:
“Aggravated burglary is likewise viewed as an extremely serious offence and the community expects the court to impose sentences accordingly. It is a crime which undermines the sense of security that people, and children in particular, are entitled to feel in their homes.”
[17] [2013] 41 VR 230
[18] [2011] VSCA 197
[19] [2012] VSCA 192
127 I agree with Ms Dipietrantonio that the elderly also fall into that category.
128 Ms Dipietrantonio also referred to sentencing snapshots for the offence of aggravated burglary, as at June 2014. Again, such information has its place and is useful, however, as I discussed with counsel, there are limitations to the use of such statistics.
129 Ultimately I must determine the appropriate sentence to impose, taking into account your offending and all matters personal to you and in mitigation of your sentence. I have no doubt in the past, dispositions other than immediate imprisonment may be appropriate (depending, of course, on the sentencing options available at the time of sentence). The question for me is, what is the appropriate disposition or sentence in your case, taking into account all relevant sentencing considerations.
130 As I discussed with both counsel, it is very difficult comparing cases factually, as circumstances vary enormously case to case, as do matters personal to an offender and in mitigation of sentence. I am assisted, in particular, however, by principles stated relevant to particular offences. There is no doubt the Court of Appeal regard home invasions as very serious offences indeed.
131
As I have said, sentencing snapshots have their place in sentencing, however a significant amount of information is not apparent in those statistics, as
I discussed with counsel.
132 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
133 There is also the need for specific deterrence, in that not only do you have a prior criminal history, although I am aware, not for the same type of offending, but you attended at a number of units on this occasion, that is, you did not desist after your first entry, relevant to Charges 1 and 2.
134 I must also consider the question of protection of the members of the community from you and bear in mind the likelihood of your re-offending. This concerns me, given the circumstances of your offending and also my lack of any real understanding of how and why you committed these offences.
135 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
136 When sentencing you, I have taken into account principles of totality and proportionality. In that regard, I note the decision of RHMcL v R[20] when sentencing a person as a serious sexual offender, relevant here to Charge 3.
[20] (2000) 174 ALR 1
137 In my opinion, to impose a community correction order, together with a further term of imprisonment, would not be an appropriate or adequate disposition for your offending.
138 In my opinion, the only appropriate disposition is a term of imprisonment with a non-parole period.
139 I sentence you as follows:
140 On Charge 1, convicted and sentenced to 5 years’ imprisonment.
141 On Charge 2, convicted and sentenced to 7 months’ imprisonment.
142 On Charge 3, convicted and sentenced to 4 years' imprisonment.
143 On Charge 4, convicted and sentenced to 6 months’ imprisonment.
144 On the summary charge of trespass, convicted and sentenced to 1 months' imprisonment.
145 Charge 1 is the base sentence.
146 I direct that 3 months of Charge 2 be served cumulatively upon Charge 1.
147 I direct that 12 months of Charge 3 be served cumulatively upon Charge 1.
148 I direct that 4 months of Charge 4 be served cumulatively upon Charge 1.
149 I direct that there not be any order for cumulation of the sentence on the charge of trespass, that is, that sentence is to be served concurrently.
150 Just for clarity, the orders for cumulation are upon each other and upon the base sentence.
151 That results in a total effective sentence of 6 years and 7 months imprisonment. I direct that you serve a period of 4 years before you are eligible for parole.
152 Pursuant to s18(4) Sentencing Act, I declare you have spent 168 days in custody by way of pre-sentence, up to and including yesterday, 12 November 2015, and direct that that be entered into the records of the court.
153 Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and if a jury had found you guilty of these charges, I would have sentenced you to a term of imprisonment of 8 and 6 months and set a non-parole period of 6 years.
154 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Counsel appearing on your behalf consented to the making of that order and I make the order based on the seriousness of this offending and your prior convictions. It will be for a saliva sample and I must advise you the authorities may use reasonable force to obtain that sample.
155 The prosecution also made application for a disposal order in relation to some property, as outlined in the prosecution opening (Exhibit A). Your counsel consented to the making of that order on your behalf and I make the order in the terms sought.
156 I heard submissions from Mr Lawson and Ms Dipietrantonio regarding the Sex Offenders Registration Act 2004 (the Act).
157 Mr Lawson submitted that whilst it was discretionary, he urged I not impose an order that you be subject to this Act, in that you are now 44 and a half years of age and given your type of prior criminal history, there would have been no "inkling" that this offending would happen and that it would therefore be unlikely to happen again.
158 Ms Dipietrantonio submitted that that was the reason why you should be subject to the Act, because you did not have any idea how this offending occurred. That “who would have thought” there would have been a risk of you re-offending in this way, given the offences in your prior criminal history.
159 In Bowden v The Queen[21], the Court referred to s11(3) of the Act and the discretion whether to impose a registration order.
[21] [2013] VSCA 382
160 The Court referred to a two-stage process (see paragraph 30).
161 The Court must be satisfied the person poses the requisite risk (paragraph 31), and a real risk (paragraph 33). In my opinion, given the lack of explanation for this offending, lack of insight regarding this offending and that you entered the retirement property on two, not one occasion, and the lack of comfort given to me by the report of Mr Simmons, limited due to lack of material or explanation to him for your offending, I am satisfied beyond reasonable doubt that the risk you pose is a real risk.
162 I am satisfied that at the time the order is made, that is now, you pose such a risk for the reasons I have just outlined.
163 The Court observed the primary purpose of the Act was to enhance community protection by reducing the likelihood of your re-offending, to facilitate the investigation and prosecution of any future offences that the person may commit and protecting potential victims, particularly children, and as such, an assessment of your risk is relevant. Based on what is presently known, an assessment can be made, directed to future risk on release.
164 The second stage of the process requires me to balance the risk posed by you which enlivened the discretion, having regard to the purpose of the statutory scheme and with the obligations imposed on registrable offenders, which place restrictions on an offender’s right to enjoy freedom and autonomy of actions (paragraph 40).
165 Consideration must be given to the magnitude and nature of the risk (paragraph 41), balanced against the serious consequences for the offender being required to submit to registration (paragraph 42).
166 The provision or not of an expert report directed to risk may not be determinative of the issue (paragraph 47).
167 That approach in Bowden was confirmed in the case of Singh (paragraph 54). In my opinion the order should be made and it will be for a period of 15 years.
168 Are there any other orders?
169 MS KLOPPER: No, Your Honour.
170 HER HONOUR: Anyone want help with the maths?
171 MS KLOPPER: It appears correct, Your Honour. Just in relation to the summary charge, does Your Honour have a copy of the certificate - - -
172 HER HONOUR: No, I was supposed to sign that.
173 MS KLOPPER: Yes, Your Honour.
174 HER HONOUR: Anything further?
175 MS KLOPPER: No, Your Honour.
176 MS DePAOLI: No, Your Honour.
177 HER HONOUR: Ms Jackson has to approach you in a moment with some documents which tells you about the Sex Offenders Registration Act. Her job is to ask you just to acknowledge receipt of the paperwork. If you do not want to sign, it is up to you, but it is her job, she has to ask you. You are not being asked if you want to be on that order, or be subject to that Act, I have made that decision. She is simply asking you to acknowledge receipt of the paperwork. That is all, nothing more. So she will be there in a minute to give you some paperwork.
178 All right, thanks Mr Cox. Your solicitor will come and visit you later, I think. You can go downstairs later.
179 MS DePAOLI: Yes, thank you, Your Honour.
180 HER HONOUR: All right, thanks Mr Cox, would you mind going. Thank you. Thanks.
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181 This matter was returned to Court on 18 November 2015 following receipt of correspondence from those monitoring the Sex Offenders Register, that the appropriate length of time pursuant to the Sex Offenders Registration Act 2004 should be 15 years and not 8 years once the determination had been made that he be subject to the order.
182 This was conceded to by both counsel for the prosecution and defence and the transcript of the hearing on 18 November 2015 will reveal that discussion.
183 The order was therefore amended pursuant to s412 Criminal Procedure Act 2009 from 8 years to 15 years.
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