Director of Public Prosecutions v Desimone
[2019] VCC 2242
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTIONCR-19-00972
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARNIE DESIMONE HAYLEY SHERRIN |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 16 December 2019 |
| DATE OF SENTENCE: | 18 December 2019 |
| CASE MAY BE CITED AS: | DPP v Desimone |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2242 |
REASONS FOR SENTENCE
---Subject: Aggravated burglary
Sentence: Desimone - 2 years community correction order
Sherrin - 3 years' imprisonment with 18 months non-parole---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | |
| For Accused Desimone | Ms K. Parker | |
| For Accused Sherrin | Mr D. Sala |
HIS HONOUR:
1Marnie Desimone, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is imprisonment for 25 years, and two charges of common assault, for which the maximum penalty is imprisonment for five years on each charge.
2The charge of aggravated burglary is premised on the basis that you entered the home of the victim's with intent to assault them, and that is what you did.
3The circumstances of your offending are contained in a summary of prosecution opening dated 16 December 2019, which was tendered in evidence and marked as Exhibit A on the plea. The summary was read in open court by the prosecutor, Mr Cordy.
4Your counsel, Mr Habib, accepted that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.
5In those circumstances, it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail than the summary.
6In the early hours of the morning on 28 January 2018, that you, accompanied Hayley Sherrin and others, went to the home of Jessica Jackson in Kangaroo Flat. The purpose of both of you was to assault Ms Jackson in her own home as revenge for the fact that she was in a relationship with your former partner, a person by the name of Angus Eggins.
7At the time, you were a woman scorned; your former partner, Eggins, having commenced a relationship with Ms Jackson, who was apparently, up until these events, regarded by you as your best friend. I can understand that at the time you felt angered by the fact that both Ms Jackson and Mr Eggins would appear to have broken the trust you had placed in both of them. That explains what happened, but it does not excuse it. It does not give you permission to act in a lawless way.
8Also at Ms Jackson's house at the time, were her father and her four children, aged 11, 10, three and two years of age, respectively.
9You and Ms Sherrin and others drove from Echuca to Lake Weeroona in Bendigo, where you met others before then travelling to Jackson's house in Kangaroo Flat. You had plenty of time to think about what you were doing and what you were going to do.
10The two of you arrived at Jackson's house around 12.30 am. You were the woman scorned but you could have called all this misadventure at any time. It was all supposedly done to avenge your honour.
11Once you arrived at Ms Jackson's house, you opened the wire door at the front and you were immediately met by Ms Jackson, who had been watching television with Mr Eggins. Ms Jackson tried to push you away, but you continued and entered the house. Ms Sherrin followed you into the house, armed with a tyre lever. I accept that you had previously told Ms Sherrin not to take that weapon with her, but she did; Charge 1, aggravated burglary.
12You grabbed Ms Jackson by the hair and spat at and scratched her whilst yelling abuse towards Ms Jackson and Mr Eggins; Charge 2, common assault.
13Ms Sherrin struck Ms Jackson on the side of the jaw with the tyre lever, which caused swelling and bruising to the side of her face, depicted in photos of her injuries later taken and put into evidence as Exhibit D.
14You then assaulted Mr Eggins, punching him in the face and ripping his shirt. He suffered a split lip in the assault, also depicted in the photographs; Charge 3, common assault
15What happened inside Ms Jackson's home did not last long. It was witnessed by Ms Jackson's two eldest children. Both you and Ms Sherrin then left the scene with the others who had travelled there with you. Ms Jackson spoke to the police and made a statement two days later.
16This is obviously a bad example of what is regarded as confrontational aggravated burglary. You went to the home of another with intent to assault, which is what you in fact did. All this was done in the presence of young children. You could have called of this off beforehand, but you appear to have been intent in letting your feelings towards Ms Jackson and Mr Eggins known in a physical way. Having said that, in my judgment your offending falls towards the upper-lower range for this kind of offending.
17When sentencing for these crimes, the court must have proper regard to the application of the sentencing principles known as deterrence, both general and specific. The sentence passed must appropriately reflect denunciation of your conduct and must have proper regard to your prospects for rehabilitation. Above all it must reflect just punishment.
18You have pleaded guilty to the charges and that is to your credit. By your pleas of guilty, you have saved the time and cost of a trial. By your pleas of guilty, you have accepted and admitted responsibility for your crimes, and you have facilitated the administration of justice.
19Importantly, in this case, by your pleas of guilty you have saved the victims from being called to give evidence against you and being cross-examined by your counsel. I accept that by your pleas, you have demonstrated remorse.
20You were charged and bailed on these charges on 22 November 2018. You have not reoffended, and you have fully complied with your conditions of bail.
21The matter resolved into a plea soon after committal mention. You were cooperative with the police. You made a statement in which you made full admissions and you made it known that you were prepared to give evidence in accordance with that statement.
22I treat you for the purposes of sentencing as having indicated you would plead guilty at the earliest opportunity. Because you have pleaded guilty at the earliest opportunity, the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.
23In your case, you are also entitled to a further reduction in sentence, having indicated at the earliest time your willingness to give evidence in accordance with your statement given to the police.
24On the plea, I received into evidence a victim impact statement from
Ms Jackson and Mr Eggins, both of whom have been understandably affected by your crimes. In passing sentence, I have taken the victim impact statements into account, as I must.25I turn to some matters personal to you. Your counsel, Mr Habib, prepared a helpful written outline of his submissions, which I marked as Exhibit 1 on your plea. I borrow from that document.
26At the outset, Mr Habib conceded your offending was serious and would normally warrant a term of imprisonment and the fixing of a non-parole period. However, he argued there were circumstances here that warranted a non-custodial disposition.
27He relied upon a number of factors:
•Your early plea of guilty and your cooperation with the police, including your willingness to give evidence against others;
•Your genuine remorse;
•Your lack of prior convictions, and no subsequent offending and your compliance with bail conditions;
•Your background, which I will soon turn to;
•The fact you are a young mother with two children, one only three and a half months old;
•The fact you have never before been to prison.
28You are now aged 32, and you were born and raised in Shepparton to good parents who cared for you and brought you up well. You left school and commenced working after Year 8. You worked in retail before leaving to care for your mother who is now deceased.
29You have had a number of relationships that have not ended well, and in some of them you have been subjected to physical and mental abuse. The break-up of your relationship with Mr Eggins had a profound effect upon your mental health. You have no ongoing substance abuse issues.
30You presently work at a café in Shepparton. And you have two children from short relationships, one is aged 4 and the youngest was born on the
10 September of this year. You live with your father.31I received into evidence a psychological report from Brendan Partridge, who has been treating you. That report sets out much of your history in detail, all of which I have had regard to. He recommended that you would benefit from continued counselling aimed at emotional regulation and interpersonal effectiveness in order to better manage your interpersonal conflicts.
32He also thought you have a disposition towards depressive and anxiety symptoms and that you would benefit from cognitive behavioural strategies to better manage negative thoughts and behaviours. I accept that report.
33As I said earlier, this is serious offending but, in my view, falls towards the mid-range of the lower end. Normally you would go to jail for offending of this kind, and that is why Mr Cordy, the learned prosecutor, submitted that I should impose immediate imprisonment.
34But in my view, all of the purposes of sentencing here, namely general deterrence, denunciation, rehabilitation and just punishment can be achieved by the making of a community corrections order with appropriate conditions.
35This offending aside, you have no criminal history and you have led an unblemished life. The circumstances that led to your offending here are unlikely to be repeated and I very much doubt you will reoffend in this way. I assess your chances for rehabilitation as being good and I think you will be assisted to reach full rehabilitation by the making of a community corrections order with appropriate conditions, and that is what I will do.
36At the time I heard your plea, I also heard the plea of Ms Sherrin. She was charged with slightly different offences and she was armed with a weapon used to assault Ms Jackson. Unlike you, she has prior convictions and subsequent matters, and she did not cooperate with the police. Her situation is therefore somewhat different to yours, although you must be regarded as having instigated the events leading to the offending, which if you had thought matters through properly you could have called off at any time. In sentencing you I have taken all of these matters into account.
37On each charge, I make a community corrections order with conviction for a period of two years, commencing today.
38There will be conditions as follows:
•That you undertake and complete 100 hours of unpaid community work;
•That you are supervised by Corrections and that you undergo programs for treatment and rehabilitation for your mental health;
•And undergo programs for treatment and rehabilitation to reduce your chances of reoffending.
39For the purposes of s.6AAA of the act, had it not been for your pleas of guilty to the charges, I would have sentenced you to a total effective sentence of three years' imprisonment and fixed a non-parole period of two years.
40Now, Ms Desimone, I cannot make a community corrections order unless you agree to enter into it; do you understand?
41OFFENDER DESIMONE: Yes, Your Honour.
42HIS HONOUR: Do you understand that if you breach the community corrections order in any way, either by committing any offence punishable by a term of imprisonment or not complying strictly with its conditions, that you can be brought back before me and re-sentenced?
43OFFENDER DESIMONE: Yes, Your Honour.
44HIS HONOUR: Do you understand that?
45OFFENDER DESIMONE: Yes, I do.
46HIS HONOUR: I want you to understand that if you do and you do come back because you have breached it, I will send you to prison.
47OFFENDER DESIMONE: Okay.
48HIS HONOUR: Do you understand that?
49OFFENDER DESIMONE: Yes.
50HIS HONOUR: Come out of the dock, if you would, and take a seat behind your counsel.
51MR CORDY: Is Your Honour intending that any hours completed with the programs ‑ ‑ ‑
52HIS HONOUR: I am sorry. Yes, any hours - Ms Desimone, any hours spent completing any of the programs for your mental health or to reoffend, they will be deducted or offset against the number of hours of community work; do you understand that?
53OFFENDER DESIMONE: Okay, yes.
54HIS HONOUR: So it is in your interest to comply fully with the directions given to you.
55OFFENDER DESIMONE: Okay.
56HIS HONOUR: Now, could you explain that, Ms Parker, to your client ‑ ‑ ‑
57MS PARKER: I will, Your Honour.
58HIS HONOUR: ‑ ‑ ‑ before she signs?
59MS PARKER: Yes, thank you.
60HIS HONOUR: We will just get a copy for you. Very well, Ms Desimone, I wish you well. I do not want to see you back in my court again.
61OFFENDER DESIMONE: You never will.
62HIS HONOUR: You are free to leave.
63OFFENDER DESIMONE: Thank you.
64MS PARKER: May I be excused as well, Your Honour?
65HIS HONOUR: Yes, thank you, Ms Parker.
66MS PARKER: Thank you.
67HIS HONOUR: Hayley Sherrin, you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is imprisonment for 25 years, and one charge of recklessly causing injury, for which the maximum penalty is imprisonment for five years.
68The charge of aggravated burglary is premised on the basis that you entered the home of the victim with the intent to assault her, and that you had with you at the time an offensive weapon, namely a tyre lever.
69The circumstances of your offending are contained in a summary of prosecution opening dated 16 December 2019, which was tendered in evidence and marked as Exhibit A on the plea. The summary was read in open court by the prosecutor, Mr Cordy.
70Your counsel, Mr Sala, accepted that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you. In those circumstances, it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way, that these sentencing remarks should, however, be read with what is set out in more detail in the summary.
71In the early hours of the morning on 28 January 2018, you accompanied Marnie Desimone to the home of one Jessica Jackson in Kangaroo Flat. The purpose of both of you was to assault Ms Jackson in her own home as revenge for the fact that she was in a relationship with Ms Desimone's former partner, a person by the name of Angus Eggins.
72Ms Desimone was in the position of being a woman scorned; her former partner, Eggins, having commenced a relationship with Ms Jackson, who was apparently, up until these events, regarded by you as her best friend.
73Also at Ms Jackson's house at the time were her father and four children, aged 11, 10, three and two years of age, respectively.
74You and Desimone and others drove from Echuca to Lake Weeroona in Bendigo, where you met others before then travelling to Jackson's house in Kangaroo Flat. You had plenty of time to think about what you were doing and what you were going to do.
75The two of you arrived at Jackson's house at around 12.30 am. Ms Desimone opened the wire door at the front and was met by Ms Jackson, who had been watching television with Mr Eggins. Ms Jackson tried to push Ms Desimone away, but she continued and entered the house. You followed Ms Desimone into the house, armed with a tyre lever. Ms Desimone had previously told you not to take that weapon, but she did; Charge 1, aggravated burglary.
76Ms Desimone grabbed Ms Jackson by the hair and spat at and scratched her whilst yelling abuse towards Ms Jackson and Mr Eggins.
77You struck Ms Jackson on the side of the jaw with the tyre lever, which caused swelling and bruising to the side of her face, depicted in photos of her injuries later taken and put into evidence as Exhibit D; Charge 2, recklessly cause injury.
78Ms Desimone then assaulted Mr Eggins, punching him in the face and ripping his shirt. He suffered a split lip in the assault, also depicted in the photographs.
79What happened inside Ms Jackson's home did not last long. It was witnessed by Ms Jackson's two eldest children. Both you and Ms Sherrin then left the scene with the others who had travelled there with you. Ms Jackson spoke to the police and made a statement two days later.
80This is obviously a bad example of what is regarded as a confrontational aggravated burglary. You went to the home of another with intent to assault, armed with a weapon which you used to injure the victim. All this was done in the presence of young children. You had no reason to involve yourself in this confrontation because the reasons bringing about the confrontation had nothing to do with you. Having said that, in my judgment, your offending falls towards the upper-lower range for this kind of offending.
81When sentencing for these crimes, the court must have proper regard to proper application of the sentencing principle known as deterrence, both general and specific. The sentence must appropriately reflect denunciation of your conduct and must have proper regard to your prospects for rehabilitation. Above all it must reflect just punishment.
82You have pleaded guilty to the charges and that is to your credit. By your pleas of guilty, you have saved the time and cost of a trial. By your pleas of guilty, you have accepted and admitted responsibility for your crimes, and you have facilitated the administration of justice.
83Importantly, in this case, by your pleas of guilty you have saved the victims from being called to give evidence against you and being cross-examined by your counsel. I accept that by your pleas, you have demonstrated remorse.
84You were arrested - would you mind not - sir, would you mind not talking to the prisoner? Thank you. You were arrested and remanded on11 March 2019, and you have remained in custody since that time, a period of 282 days pre-sentence detention.
85There was a matter made on your behalf to resolve the matter, which was rejected by the prosecution. That was followed by a contested committal. The charges resolved into a plea of guilty at the second initial directions hearing on 18 June 2019. Whilst the matter did not resolve at the earlier opportunity, for the purposes of sentencing, I do regard you as having indicated that you would plead guilty to the charges at an early stage.
86Because you have pleaded guilty at an early time, the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentences that I will shortly pass.
87On the plea, I received into evidence a victim impact statement from
Ms Jackson and Mr Eggins, both of whom have been understandably affected by your crimes. In passing sentence, I have taken the victim impact statements into account, as I must.88I turn to some matters personal to you. You were born on 16 May 1990, and at the time of this offending, you were aged 28. At the time that you were arraigned, you admitted a limited criminal history that does not include acts of violence.
89In 2015, you were before the Shepparton Magistrates' Court on public order charges, for which you received an adjourned undertaking to be of good behaviour, which you subsequent breached.
90There are some subsequent matters that are relevant to putting your drug problems in context. On 1 July 2018, after the offending but before you were charged, you were again before the Shepparton Magistrates' Court, where you pleaded guilty to drug offences and driving offences, and also to a charge of possessing a prohibited weapon without exemption. You received a community corrections order for a period of 12 months.
91Two weeks later, you were again before the Shepparton Magistrates' Court in relation to further drug offences an dishonesty charges. You received another community corrections order.
92Your counsel, Mr Sala, prepared a helpful written outline of his submissions, which I marked as Exhibit 1 on the plea. I borrow from that document.
93At the outset, Mr Sala conceded your offending was serious and would warranted a term of imprisonment and the fixing of a non-parole period. He submitted the gap between the head sentence and a non-parole period should be longer than normal, having regard to all of the circumstances of the case and your personal circumstances.
94Your parents separated when you were very young, and you have very little relationship with your father. Your mother re-partnered into what is described as a volatile relationship, characterised by the family unit moving around a lot. You attended several different primary schools and finished your formal education in Year 10. Soon after, you engaged in drinking, minor drug use and periods of self-harm.
95At age 15, you were living in a relationship with your boyfriend, which resulted in some stability in your life, and you obtained employment. That relationship ended just after you 16th birthday, when you moved to the New South Wales central coast, working as a live-in nanny to six children.
96Soon after, you entered a relationship with a man punctuated by violence, which produced two children, a boy and a girl now aged 11 and nine, respectively. That relationship also broke up, where upon you returned to Victoria, where you work in hospitality.
97At age 25, you were introduced to the drug ice. The drug took hold and your life is said to have spiralled out of control. The children are cared for by your parents-in-law, arranged by you as a protective move.
98I was told and accept you were drug affected by methylamphetamine at the time of this offending, which helps to explain what you did, but does not excuse it.
99I received into evidence a reference from your sister, Jessica Hall. She speaks of your difficulty with drugs and the effect this has had upon you and your life, and your regret at having become involved with drugs. She says that she has seen a change in you for the better since you have been in custody.
100I also received a character reference from your father, Lindsey Sherrin. He also speaks of your problems with drugs and the difference he can see in you since your imprisonment and absence from drugs. He says you are focussed on repairing your life. Your current partner and other family members were in court to support you.
101Whilst in custody, you have been involved in an intensive residential drug and alcohol treatment program, and urine analysis results also tend to show you remain drug free in a custodial setting. Also whilst in custody, you have undertaken and completed a number of courses available to you.
102I accept that you appear to have used your time in custody well, and to take advantage of various courses and counselling available to you. You did not apply for bail to try to rid yourself of drugs, and in a custodial setting that appears to have assisted you to get off drugs.
103Mr Sala submitted your charges of rehabilitation are high because of what you have done in prison. He submitted prospects of rehabilitation would be assisted by a lengthy parole period on parole. I assess your prospects for rehabilitation as guarded because you are a drug addict. It remains to be seen whether you can remain drug free when out of prison.
104However, I accept that you are doing your best to change your ways, and a I accept you would be assisted by a longer than normal period on parole, and this will be reflected in my sentence that I will shortly pass.
105At the time I heard your plea, I also heard the plea for Ms Desimone. She was charged with slightly different offences, and she was not armed with a weapon used to assault Ms Jackson.
106Unlike you, she has no prior convictions, and she assisted the police, giving them her full cooperation and made a statement, implicating those involved, and she was prepared to give evidence. Her situation is therefore somewhat different to yours, although she must be regarded as having instigated the events leading to the offending, which if she had thought matters through properly, she could have called off at any time.
107In sentencing you, I have taken all of these matters into account.
108On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of two and a half years.
109On Charge 2, recklessly cause injury, you are convicted and sentenced to term of imprisonment of one year.
110I direct that six months of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of three years.
111I direct that you serve a minimum term of 18 months' imprisonment before being eligible for release on parole. I direct that 282 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and be deducted administratively.
112For the purposes of s.6AAA of the act, had it not been for your pleas of guilty to the charges, I would have sentenced you to a total effective sentence of five years' imprisonment, and fixed a non-parole period of three years and four months. Are there any questions arising out of that, Mr Sala?
113MR SALA: No. Thank you, Your Honour.
114HIS HONOUR: Mr Cordy?
115MR CORDY: No, Your Honour.
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