Director of Public Prosecutions v Dalais
[2022] VCC 2175
•7 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02348
Indictment No: L12561857.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACQUES DALAIS |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2022 | |
DATE OF SENTENCE: | 7 December 2022 | |
CASE MAY BE CITED AS: | DPP v Dalais | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2175 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Home invasion – factual dispute – extra-curial punishment - co-offenders – parity – quasi-custodial rehabilitation.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers [2014] VSCA 314; Akoka v The Queen [2017] VSCA 214; DPP v Heaven & Anor [2022] VCC 473.
Sentence: 2 years, 6 months imprisonment; Non Parole Period of 1 year, 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Johnson | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Dickinson KC | Garde Wilson Lawyers |
HIS HONOUR:
Introduction
1Jacques Dalais, you have pleaded guilty to one charge of home invasion,[1] the maximum penalty for which is 25 years' imprisonment.
[1] Contrary to s 77A of the Crimes Act 1958.
2Home invasion is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991. The court must impose a custodial sentence unless an exception applies. It was not contended by the defence that any exception applies in this case. I therefore must sentence you to a term of imprisonment for this offence.
3The case against you is put on the basis that your co-offenders had an intention to assault the occupants of the home at the time you attended the Betteridge’s home, and that persons were present in the home and that you assisted or encouraged them to effect that purpose. Your co-accused, Patrick Iaulualo and Daniel Heaven, previously pleaded guilty to this charge, albeit on the basis that each of them possessed an offensive weapon at the time they entered the home.
4The charge is put against you on the basis that you were complicit with your two co-offenders in entering the home, having formed an intention to assault the occupants. Sections 324 and 323(1)(a) of the Crimes Act 1958 provide that a person who assists, encourages or directs another to commit an offence is also criminally responsible for that offence and is liable to the maximum penalty.
Summary of Offending
5A prosecution opening was tendered on the plea.[2] You took issue with two aspects of it, namely the contention that your criminality commenced at the time of your arrival at the premises and, secondly, that your trespass into the home was deliberate. Noting these two areas of contention about which I will say more later, your offending can be summarised as follows.
[2] Prosecution Exhibit 1.
6In the early hours of Sunday, 18 October 2020, the victims, Paul and Julie Betteridge, and their son, Jake Betteridge, were in bed and sleeping at their home. You and your two co-offenders were not known to the victims. The three of you arrived at the address at 12.08 am. The victims had fitted CCTV footage at the premises and your attendance was captured by the security system. The CCTV footage was tendered and shown on the plea.[3]
[3] Prosecution Exhibit 3.
7Mr Iaulualo can be seen in the footage dressed in a hooded jumper with the words “Harley Davidson” printed on the back. His beard is also identifiable and he can be distinguished from you and from Mr Heaven by his larger frame. In his right hand Mr Iaulualo carried a small high power butane gas torch. This is visible in the footage. The prosecution accepts that you were not aware of this.
8Mr Heaven wore a bandana over his face and a cap on his head. You wore a hooded jumper with the words “Wall Street Kustoms” printed on the back. The distinctive tattoo of a bird on your hand is also visible in the footage.
9
You and your co-offenders approached the front porch walking in single file –
Mr Iaulualo first, then Mr Heaven, and followed by you, Mr Dalais. Mr Iaulualo walked to the front door and tried to open it.
10Mrs Betteridge heard the noise at the front door and awoke. She left her bed and went to the front door, pulled the curtain aside on the window next to the door and saw the three of you at the front door. She woke her son, Jake, and her husband, Paul, to alert them about your presence. Paul Betteridge had heard the commotion at the front door and got out of bed, taking a baseball bat with him for protection. Paul and Jake Betteridge came to the front door.
11
Mr Heaven forcefully pulled at the front screen door to open it. Unsuccessful,
Mr Iaulualo violently kicked at the screen door three times before the security door caved in and the front door opened.
12As this was occurring, you noticed a security camera on the side of the house. You walked up to this camera and knocked it off its brackets, which rendered it inoperable.
13Mr Iaulualo first entered the house. He was confronted by Paul Betteridge who was standing in the doorway. Mr Heaven followed. This is the conduct that comprises Charge 1, Home Invasion. A confrontation occurred with Paul Betteridge when Mr Betteridge used his baseball bat to fend off the attack on him. Paul Betteridge hit Mr Iaulualo with the bat up to three times. Mr Heaven and you, Mr Dalais, stood further behind Mr Iaulualo.
14While Mr Iaulualo and Mr Heaven were inside the house, you remained in the doorway on the front porch.
15Paul Betteridge yelled out to your group, “What do you want?”. Mr Iaulualo responded, “I want to fight.”
16
Using his baseball bat, Paul Betteridge managed to fight off Mr Iaululo and
Mr Heaven and they retreated from the home. You softened Mr Heaven’s fall out of the property.
17
However, you did not leave. Mr Iaulualo continued to 'shape up' in a fighting stance and re-entered the property. You stood in the front doorway and took hold of the door frame. You then entered the property. Mr Heaven followed you into the house for a second time. Your trespass into the home and then re-entry by
Mr Iaulualo and Mr Heaven is characterised by the prosecution as a continuation of the offence.
18
In the house, Mr Iaulualo and Mr Heaven continued to assault Paul Betteridge.
Mr Heaven used the butane torch that Mr Iaulualo carried into the house to hit Jake Betteridge in the head. The torch fell to the ground, as did Jake. He kicked back at Mr Heaven.
19As she again approached the front door, Julie Betteridge fell in the hallway, and sustained injuries for which she later received treatment in hospital. She telephoned ‘000’ and called for police.
20You and your co-offenders remained in the house for approximately two minutes before leaving the premises at 12.11 am.
21As a result of the assault committed upon him, Paul Betteridge sustained injuries. Jake Betteridge also sustained injuries. The fact that people were injured in the house is relied upon to establish an intention to assault the occupants of the house at the time of entry. You are not charged and cannot be sentenced for causing injury to Paul or Jake Betteridge.
22You were arrested and interviewed on 29 October 2020.
Factual dispute
23I was told at the start of the plea hearing that two matters relied on by the prosecution were in contention, namely the assertion that you knew what was intended to take place when you arrived at the Betteridge’s home, that is that their home was going to be invaded and, secondly, the assertion that your trespass into the home was deliberate. On your behalf, it was contended that your culpability only commenced in the seconds before Mr Iaulualo kicked in the Betteridge’s door and, secondly, that you were pushed into the home by Mr Heaven and did not enter it voluntarily.
24
In order to resolve this dispute, you gave evidence. Your account was that you knew nothing of your co-offenders plan before an Uber was called and the three of you arrived at the Betteridge's home. You are seen in the CCTV footage wearing a hoodie and a mask covering your face. You told the court that masks were mandatory for passengers in Ubers at that time and you continued to wear yours once you alighted from the car because you were practising responsible
COVID-19 social distancing protocols. Mr Heaven is seen in the CCTV footage embracing the same protocols, albeit using a bandana to cover his face. Mr Iaulualo again scrupulously observed the same socially responsible etiquette.
25The CCTV footage depicts you accompanying your co-offenders to the Betteridge’s front door and pointing out to Mr Heaven a second CCTV camera which you then disabled. Under cross-examination, you denied pointing out the presence of the camera to Mr Heaven.
26I am comfortably satisfied that that is what the footage shows. In order to resolve the dispute between the parties, your actions on the footage at this point are instructive. You told the court that you disabled the CCTV camera because you panicked. Your movements in approaching the camera and returning to the fray once you had disabled it are unhurried and undermine your explanation. I also place some store by the correspondence passing between the OPP and your solicitor,[4] in which the resolution of this matter was confirmed expressly on the basis that you knew upon arrival at the Betteridge’s home that your co-offenders were there to effect a home invasion and you participated in it.
[4] Prosecution Exhibit 6.
27I am therefore satisfied beyond reasonable doubt that you formed the necessary intention to participate in a home invasion upon alighting from the Uber or at the latest when the three of you gathered outside the Betteridge’s front door.
28I have viewed the CCTV footage a number of times to determine whether your trespass was intentional or accidental. You gave evidence that you remonstrated with your co-offenders and implored them to stop. You said you were so loud the street would have heard you. The statements of the three Betteridge's were put to you in cross-examination: none of them supports this aspect of your account in which you are the sole voice of reason. The footage depicts you at one stage being pushed by Mr Heaven before you crossed the threshold of the Betteridge's home, but you had recovered from this push by the time you entered the property and you entered it under your own steam. You then remained in the home for a number of seconds when your co-offenders further assaulted the Betteridges.
29You also gave evidence that you pulled your co-offenders from the house at one stage. Whilst that is true, it occurs at a time when Paul Betteridge had armed himself with a baseball bat and was repelling your co-offenders who were forced to retreat from the house. You assisted in pulling them to safety. You then remained with them as hostilities resumed.
30I do not accept that your actions in assisting your co-offenders to escape a battering by Paul Betteridge constitutes evidence in support of your claims to being a force for good and a benign presence. I note moreover that your evidence on this score comes close to traversing your plea, by which you have accepted each of the elements of home invasion. Accordingly, to the extent that it constitutes an aggravating feature of your offending, I am satisfied beyond reasonable doubt that you deliberately entered the Betteridge's home, and you did so with the intention to effect a home invasion by assisting your co-offenders in their assaults upon the occupants.
Impact on the Victims
31The Victim Impact Statements of Julie Betteridge and Paul Betteridge[5] were tendered on the plea and read aloud by the prosecutor.
[5] Prosecution Exhibit 2.
32Paul Betteridge describes that he no longer sleeps well, waking up many times in the night. He has trust issues and finds his mind occupied with the question: 'is something going to happen to me?'. He finds it hard to relax and sees a counsellor on a regular basis. He says that 'this has changed [his] life forever'. He no longer feels safe going to new places and describes feeling uneasy in life.
33Mr Betteridge has invested in additional security measures for the home, including a camera and panic button. He replaced the front door, door frame, security door, carpet, flooring, and had to repair the walls, hall table and ornaments.
34Julie Betteridge says she has never experienced fear like she did at the time and following the offending, she cannot be in the house unless all the doors are locked, and describes that 'there is always an underlying fear'. Mrs Betteridge has been unable to sleep properly, waking regularly on ready alert. She describes experiencing fear, anxiety, frustration and anger for which she has sought counselling. She has subsequently been diagnosed with post-traumatic stress disorder and irritable bowel syndrome. She has difficulty concentrating and focussing, which has had a major impact on her working life.
35
A letter from Dr Singh,[6] Mrs Betteridge's general practitioner, was tendered on the plea, which confirms her diagnoses and attendance at psychotherapy and Eye Movement Desensitization and Reprocessing (EMDR) therapy. A letter from
Ms Lane,[7] treating psychotherapist, was tendered which also confirmed
Mrs Betteridge's counselling and trauma therapy from March 2021 and outlines the impact of the offending which I will not summarise in these sentencing remarks.
[6] Prosecution Exhibit 5.
[7] Prosecution Exhibit 5.
36I take this into account pursuant to s 5 of the Sentencing Act 1991, noting that you are not charged with the assaults upon the Betteridges.
Personal Circumstances of the Offender[8]
[8] Defence Exhibit 2.
37You were 44 years old at the time of the offending and are 46 now. You were born in Mauritius. Your family moved to Australia when you were aged six and you are now an Australian citizen. You are the eldest of three children.
38You separated from your wife in 2016. There are two children of that union, aged approximate 26 and 12 years old. You maintain shared custody of your younger child and are actively involved in parenting that child.
39You enjoyed school, were popular with your teachers and peers, School Captain in grade 6 of primary school. You report an unremarkable upbringing. You completed your schooling to Year 11 and then undertook a panel beating apprenticeship.
40You have a strong work history. You worked with your uncle as a panel beater on a part time basis for 14 years. You obtained a position at Kenworth as a senior spray painter for 22 years which required you to work long hours each week. You purchased a panel beating business in 2010 requiring significant financial investment, the business faced challenges however survived and became successful with a strong customer base.
41You are passionate about cars and motorbikes, you have built upwards of 100 cars and motorbikes. You reported to Mr Armstrong[9] that you gave away all motorcycle restoration equipment to prevent any future association with negative peers.
[9] Defence Exhibit 3.
42In approximately 2016 you were told that your mother had a terminal cancer diagnosis with six months to live. You and your family provided full time care for your mother until she passed away in April 2017. You reported that you struggled to cope mentally and began to use cocaine twice weekly after her death.
43You reported that the death of your mother was particularly difficult on your youngest brother who died by suicide in January 2019. After the loss of your mother and brother, you reported that you continued to use cocaine up to three times weekly and increased your consumption of alcohol to at least two stubbies per day and up to nine or ten stubbies on the weekend.
44After your arrest you were remanded in custody for 25 days before being granted bail to attend the Hills and Rangers Rehabilitation Facility for three months, you personally funded this treatment using the proceeds from the sale of your house. You report that you have remained abstinent from cocaine and alcohol, save for the occasional drink, since completing the program.
45You have a prior criminal court outcome relating to one charge of unlawful assault in 2019 for which you were fined without conviction and required to complete an anger management course. This is of marginal relevance to the current sentencing exercise.
46A bundle of 10 character references[10] was tendered on your behalf. I have read them and taken into account their contents. I note that they are replete with expressions of remorse made by you to the authors.
[10] Defence Exhibit 4.
47You were supported in court by your family, including your current partner, brother, son and friend, Victor Curry. You are fortunate to have such support of your family and friends. I was told that your two children were also present, albeit sitting outside court.
Matters in Mitigation
Mental Health
48A psychological report of Luke Armstrong was tendered by counsel on your behalf.[11] Mr Armstrong opines that 'the deterioration in [your] mental state following the death of [your] brother would best be described as an Adjustment Disorder, one which [you] self-medicated with alcohol and cocaine'. Mr Dickinson relied on this diagnosis in order to place your offending in context. He says that you were unusually susceptible to peer pressure and poor decision-making as a consequence of your mother’s death, your brother’s suicide and your marriage breakdown. These events precipitated Mr Armstrong's diagnosis. Mr Dickinson did not try to persuade me that this diagnosis enlivened the factors in Verdins.[12]
[11] Defence Exhibit 3.
[12] R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’).
49You reported significant anxiety upon remand and a history of major panic attacks since your time in custody, however these symptoms have now improved following bail and treatment.
Application of Verdins
50Mr Dickinson KC on your behalf relies on your agoraphobia-like symptoms whilst on remand as enlivening the operation of limb 6 in Verdins. Limb 6 provides that:
'where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.'
51Mr Armstrong reports that upon your remand your:
'anxiety sky rocketed to include claustrophobic like symptoms. [You] report a history of major panic attacks since his remand experience, “I feel like I am having a heart attack”. Whilst these symptoms have improved following bail and treatment, [you] report that claustrophobic symptoms are ongoing at a mild to moderate level.'
52Mr Armstrong goes on to opine that he:
'would regard [you] as a vulnerable prisoner if incarcerated. [Your] mental state further deteriorated upon being remanded, it would appear that generalised anxiety developed into agoraphobic like symptoms, i.e. panic symptoms in response to his restricted cell environment. Giving consideration to [your] mental state as a consequence of incarceration, it is probable that your client would again experience any custodial sentence as particularly arduous'
53Mr Armstrong did not give oral evidence on the plea, although his attendance had been previously organised. The contents of his report have been received uncontested. I accept that his comments provide a basis for concluding that this condition and its likely recurrence means that the sentence I impose will weigh more heavily on you than on a person in normal health, thereby enlivening the operation of limb 5 of Verdins, but there is insufficient material before me to conclude that limb 6 is engaged. You are entitled to some amelioration of your sentence by reason of limb 5 operating here.
Prospects of Rehabilitation
54It has been put on your behalf that your prospects of rehabilitation are excellent. You have one relevant prior finding of guilt for assault. You were fined without conviction on that occasion and I am told that that offending did not involve an episode of physical violence.
55Since you were charged with this offending you have spent 25 days in custody after which you spent three months in residential rehabilitation. I am told that you have nothing pending, nothing outstanding and that you complied with onerous bail conditions which included a curfew.
56Mr Dickinson KC submitted that during the delay of two years between arrest and sentence you have successfully enhanced your prospects of rehabilitation by undertaking drug and alcohol rehabilitation and completing charitable volunteer work. He contended that your rehabilitation had in effect been attended to and you should not, therefore, be returned to gaol.
57The plea prosecutor accepts that your prospects of rehabilitation are good as do I.
Additional Impacts of Imprisonment
58Mr Dickinson submitted that you have a close relationship with your two children and you have a shared-care arrangement with your former wife. You care for your younger child on a 50/50 basis. Your separation from her will doubtless make any time served more burdensome, but it was not contended that exceptional circumstances exist here warranting the exercise of mercy consequent upon any unusual hardship she is likely to suffer by being separated from you.
59Mr Dickinson KC submitted that if you were sentenced to a period of imprisonment this would have a significant adverse impact on your business. I was told that your business suffered when you were remanded in custody, but that you revived it upon your release. You have two employees, one of whom is an apprentice panel beater, but you are the only qualified panel beater and your absence from the business will have the effect of removing the one person fully trained to carry out the business' work.
Plea of Guilty
60You have pleaded guilty to this charge and this is to be taken into account in mitigation of your sentence. It is contended that your plea has been entered at the first reasonable opportunity.
61You had a committal hearing in the Melbourne Magistrates Court on 3 November 2021. The matter appeared to resolve shortly after that hearing. You were arraigned on 1 December 2021 and pleaded guilty to the charge of Aggravated Burglary before Judicial Registrar Wilson. Counsel on your behalf made an application for change of plea. The application was not opposed by the prosecution and was granted by Judge Lacava on 24 March 2022.
62You were arraigned and pleaded not guilty to Aggravated Burglary on 24 March 2022. An application for trial by judge alone was filed on 7 October 2022 and granted by Judge Mullaly on 18 November 2022. The matter was listed for trial on 30 November 2022. On 29 November 2022, correspondence was received by the court indicating that the matter had resolved. The matter was initially listed for Plea on 30 November 2022, however was adjourned at the request of the prosecution to 2 December 2022.
63Whilst your plea was not entered at the earliest possible opportunity, you have spared the time and resources that would otherwise have been expended on contested proceedings. That said, you did contest two significant features of the case against you and gave evidence, which ultimately undermined your claims to genuine remorse by minimising your own involvement. You have, nonetheless, spared the victims of this matter the difficult process of giving evidence. The utilitarian value of your plea is especially significant, having regard to the impact that pandemic restrictions have had on court listings.
64You contend that your earlier plea to aggravated burglary is demonstrative of remorse and a desire on your part to facilitate the course of justice. It is also argued that your plea to home invasion was entered at the first reasonable opportunity given that negotiations as to the factual basis for the plea were protracted and only once certain concessions were made by the prosecution was it possible for you to enter your plea. That submission is somewhat undermined by the fact that you ran a contested plea, but I am prepared to accept that your plea was entered at an early stage and you will be given credit for it.
65I accept that your plea of guilty is evidence of remorse. As I say, the genuineness of that remorse was somewhat undercut by the evidence you gave which sought to sanitise your role and your involvement. Your uncle, Clency Mahon, gave evidence and told the court that you understood the grief and upset you caused the Betteridges. I am prepared to sentence you on the basis that you have expressed to others that you are sorry for having become involved in this episode. There are also expressions of remorse in the report of Mr Armstrong and the various character references, and I have had regard to them.
Impact of COVID-19
66You have spent 25 days in custody by way of pre-sentence detention at a time during which pandemic restrictions placed additional burdens on your time in custody. In addition, any further period of imprisonment imposed will be subject to a prison environment that is still more burdensome than would otherwise be the case as a result of pandemic restrictions. Whilst the most onerous of the restrictions upon visits and programs have been relaxed somewhat from the height of the lockdown, the additional deprivations caused by the pandemic are likely to remain in place for the duration of your sentence. I take this into account as a matter in mitigation.
Character Witnesses
67The court also heard from Peter Duncan, who has known you for six and a half years and told the court about how grief-stricken you were by your mother's diagnosis and by your brother’s suicide. He says you are well-regarded in the community and that you say hello to people as they walk by your business.
68The court also heard from Victor Curry, who is a director of Fit for Life. He described you as a loyal friend with a huge heart and told the court that you volunteer at his organisation, driving disabled clients around. A photograph was tendered of you wheeling a disabled client in a wheelchair.[13]
[13] Defence Exhibit 6.
Parity
69Your co-offenders each pleaded guilty to Home Invasion and Common Law Assault. They were both sentenced by Judge Lacava on 6 April 2022.[14]
[14] DPP v Heaven & Anor [2022] VCC 473.
70Mr Iaulualo was sentenced to a term of four years' imprisonment for his part in the Home Invasion with a nine-month gaol term for the Common Law Assault, six months of which was cumulated to the base sentence producing a head sentence of four and a half years with a non-parole period of three years.
71Mr Heaven received a term of three and a half years for the Home Invasion and nine months for the first Common Law Assault and six months for the second. With partial cumulation, that produced a sentence of four years, three months and a non-parole period of two years, nine months. Judge Lacava described the offending as, 'an entirely unprovoked confrontational home invasion in the middle of the night when the occupants were asleep'.
72Neither of your co-offenders ran an oral committal, neither of them contested the prosecution summary of facts. Each of them indicated in the Magistrates’ Court an intention to plead to their charges and their matters were remitted to this court by way of hand-up brief. On the other hand, each of them had relevant prior convictions and their antecedents are more serious than yours. It was accepted on his plea that Mr Iauluolo was the principal offender. It was his idea to go to the Betteridge's and assault the occupants. His prospects of rehabilitation were assessed as guarded. He was 28 when sentenced. He had prior convictions from five appearances in the Dandenong Magistrates’ Court between 2016 and 2019 relating to Assault With a Weapon, Stalking, Criminal Damage and Contravening a Family Violence Intervention Order.
73Mr Heaven was 32 and had prior convictions for Aggravated Burglary, Intentional Cause Injury and Common Law Assault recorded when he was 22. He had served six months by way of a partially suspended sentence for that offending. His relationship with his partner ended in 2018 and he began drinking heavily. In 2020, two close friends disappeared on a fishing trip. This and the loss of another friend are said to have sent him into a depression prior to his involvement in this offending.
74On your behalf, Mr Dickinson KC says that you are entitled to a significant departure from parity. He relies principally on the fact that your co-offenders had hatched a plan and intended to assault the occupants of the Betteridge house with weapons prior to organising an Uber to drive you there. That knowledge was kept from you.
75The prosecution does not contend that you knew of the plan to commit a home invasion until you arrived at the Betteridge's home. Accordingly, you cannot be sentenced on the basis of any pre-planning or on the basis that you knew a weapon or weapons were going to be used on the occupants.
76
Mr Dickinson KC also argued that your involvement commenced at the time
Mr Heaven attacked the Betteridge's front door. I reject that submission: I am satisfied that your participation started upon your arrival at the front of the house or within seconds of it. He also submitted that your prior criminal history is more modest than either of your co-offenders. That is true.
77He submitted that a wholesale departure from parity was justified in your case and suggested that the 25 days you had spent in custody before being released to bail would, in all the circumstances, constitute an appropriate punishment.
Akoka v The Queen[15]
[15] [2017] VSCA 214 (‘Akoka’).
78Mr Dickinson KC urged the court to accept that the three months you spent in residential rehabilitation were quasi-custodial in the sense that you remained there for the entire three months and did not leave. The court was provided with a letter from Mr Ian Hardy dated 9 March 2022[16] attesting to your participation in the program, and I was also provided with a copy of your treatment plan.[17] No evidence was taken from Mr Hardy, but I am prepared to accept that you remained at the facility and your freedom of movement was restricted for those three months.
[16] Defence Exhibit 5.
[17] Defence Exhibit 7.
79You are entitled to a discount on your sentence as a consequence.
Submissions on Sentence
80Ms Johnson, on behalf of the prosecution, submitted that this is a serious example of a serious offence and one that warrants a head sentence with a non-parole period.[18] She stressed that in entering your plea to home invasion you have accepted that you and your co-offenders had an intention to assault the occupants of the home. She also pointed to the lack of remorse evidenced by the parts of your evidence in which you minimised your role.
[18] Prosecution Exhibit 4.
81As to the timing of your plea, she pointed to the fact that this offer was made for the first time on 22 July 2022.
82As to parity, she pointed to the fact that there were significant matters in mitigation relied on for each of your co-offenders.
83She did concede that your moral culpability was of a lesser magnitude due to the absence of pre-planning and the lack of knowledge on your part that your co-offenders had carried weapons with them to the house to be used in the attack.
84Ms Johnson did not concede that limb 6 of Verdins was enlivened in your case. She did accept that the three months you spent in residential rehabilitation should be given some weight.
85Counsel on your behalf, Mr Dickinson KC, submitted that your role involved less criminality than your co-offenders and it only spanned the time from arrival to departure in the Uber. It did not involve planning to assault the occupants with a weapon or weapons and did not involve knowledge by you of the weapons possessed by your co-offenders. He also relied on the fact that you have a more modest criminal history than your co-offenders. He relied on your positive work history and the fact that you were more vulnerable to peer influence due to your mother’s death and your brother’s suicide and the breakdown of your marriage.
86Ultimately, his submission was that you have effectively completed your rehabilitation and you should not be returned to gaol. He relied on the principles in Akoka’s case and the fact that you have spent a long time subject to onerous bail conditions as matters that militate toward imposing a disposition that keeps you in the community.[19]
[19] Defence Exhibit 1.
Sentencing Principles
87Home invasion carries a maximum penalty of 25 years, reflecting its seriousness. This offence was introduced in December 2016. Before then, conduct such as yours would have been characterised as aggravated burglary which also carries a 25 year maximum, the distinction between the offences being that the home invasion is committed in company. Home invasions based on facts such as these, when laid as aggravated burglaries, regularly attracted long sentences. In the case of Hogarth v The Queen,[20] the Court of Appeal when dealing with home-invasion type aggravated burglaries described them as a particularly nasty type of criminal conduct and said:
'Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge…..The entry of offenders- acting in anger and often fuelled by alcohol- is itself a terrifying experience for the householders, irrespective of what may occur after entry.'
[20] (2012) 37 VR 658.
88These observations are apposite here.
89In DPP v Myers[21] the Court of Appeal provided a non-exhaustive list of factors a sentencing judge should consider in assessing the seriousness of an aggravated burglary. Those comments are relevant to this offence. Amongst the considerations are:
(a) intent at point of entry;
(b) the mode of entry;
(c) whether the offender was carrying a weapon;
(d) whether the offender was alone or in company;
(e) the time of day at which the burglary took place;
(f) what the offender knew or believed about who would be inside, and;
(g) whether the offender was someone of whom the victim was particularly scared.
[21] (2014) 44 VR 486.
90A number of these factors are present here. The intent was to assault the occupants. The mode of entry was violent and frightening, involving battering the front door and destroying the security door. You were not carrying a weapon. You were in company. The attack occurred around midnight. You knew or believed that there were people present. You were unknown to the Betteridge’s and so were your co-offenders. The attack on them must have been terrifying. This is very serious offending notwithstanding your limited role.
91The nature of the charge of home invasion is such that general deterrence is an important sentencing consideration. I must also seek to specifically deter you from further offending, although I accept that this consideration is not as prominent as it would have been but for the steps you undertook to attend to your own rehabilitation. I must also express denunciation for your conduct. I must protect the community, impose a penalty that represents a just punishment in all the circumstances and reflects your prospects of rehabilitation as I have found them to be.
Sentence
92Will you now stand, Mr Dalais? I sentence you as follows:
93On Charge 1, Home Invasion, you are convicted and sentenced to two and a half years' imprisonment.
94I order that you serve a period of 18 months before becoming eligible for parole.
95
Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have spent
25 days in custody by way of pre-sentence detention and that this be reckoned as served.
96Pursuant to s 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of four years' imprisonment with a non-parole period of two and a half years' imprisonment. That is the sentence and you can sit down.
97Are there any ancillary orders?
98MS JOHNSON: No, Your Honour, none sought.
99HIS HONOUR: Anything arising?
100MR DICKINSON: No, Your Honour.
101HIS HONOUR: Very well.
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