Director of Public Prosecutions v Dussi
[2018] VCC 1786
•2 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02228
Indictment H12087612
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN DUSSI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2018 | |
DATE OF SENTENCE: | 2 November 2018 | |
CASE MAY BE CITED AS: | DPP v Dussi | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1786 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Damaging property – Aggravated burglary – Unlawful assault – Domestic violence against former partner – Home invasion – 42 year old offender – Significant steps towards rehabilitation – Genuine remorse – Since remanded for subsequent alleged offences – Renzella and totality – Merciful sentence imposed
Legislation Cited: Criminal Procedure Act 2009 (Vic) s 45 – Sentencing Act 1991 (Vic) s 44
Cases Cited:Bradshaw v The Queen (2014) 46 VR 308 – DPP v Brown (2004) 10 VR 358 – DPP v Meyers (2014) 44 VR 486 – DPP v Rivette [2017] VSCA 150 – DPP v Smeaton [2007] VSCA 256 – El-Waly v The Queen (2012) 26 VR 656 – Hogarth v The Queen (2012) 37 VR 358 – Kalala v The Queen [2017] VSCA 223 – Markovic v R (2010) 30 VR 589 – R v Osenkowski (1982) 30 SASR 212 – R v Renzella [1997] 2 VR 88 – Uzun v The Queen [2015] VSCA 292
Sentence: Total effective sentence of 12 months’ and 32 days’ imprisonment combined with a 3 year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Bate | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr L Barker | Theo Magazis & Associates |
HIS HONOUR:
1 Adrian Dussi, you have pleaded guilty to an indictment containing one charge of damaging property and one charge of aggravated burglary. The aggravated burglary charge has been laid on the basis that you entered as a trespasser part of a building with intent to assault a person therein and at the time of entering the building, a person was then so present in the building and you knew that a person was then so present or were reckless as to whether or not a person was so present. You have also consented to have this Court deal with four transferred related summary offences,[1] namely: the unlawful assault of Henry Taliai (charge 4); the unlawful assault of Emily Taylor (charge 5); a further unlawful assault of Emily Taylor on an earlier occasion (charge 9); and a charge of failing to answer bail (charge 11).
[1]Pursuant to s 145 Criminal Procedure Act 2009.
2 The maximum penalties for these offences are as follows: damaging property, 10 years’ imprisonment; aggravated burglary, 25 years’ imprisonment; unlawful assault, 3 months’ imprisonment and/or 15 penalty units; failing to answer bail, 12 months’ imprisonment.
3 The prosecution filed a summary of prosecution opening dated 20 March 2018,[2] which I have been told by your counsel I can treat as a summary of agreed facts.
[2]Exhibit P1.
The facts
4 The primary victim in this matter is Emily Taylor, who at the time of the offending had been in a relationship with you on and off over a period of about 12 months. This relationship ended about a week prior to the offending.
Incident No 1
5 On 7 April 2017, you attended at Ms Taylor’s home at approximately 2.30pm. You stood in the front door area and asked her for your shirts, to which she responded she had given you all your belongings and you had no reason to be at the premises.
6 You became angry and threw a shoe box containing a number of tools at her. You also threw a blow torch canister at her, which was about 30 to 40 centimetres in length, striking her left arm, causing bleeding, swelling and bruising. These facts give rise to related summary charge 9, unlawful assault.
7 Ms Taylor then stepped outside where you held her against the brickwork and railing in front of the house. You had previously asked Ms Taylor for $20 in order to buy cigarettes which she had refused to give to you. Following your assault on her, she threw the $20 towards you. You then let her go and left the premises.
8 Ms Taylor did not report this incident to police at the time. However, because she was in fear of you, she requested that a friend, Henry Taliai, come and stay with her. Mr Taliai arrived at a time when Ms Taylor and you were both present at the premises. He describes a situation between you and Ms Taylor in which you were vocally aggressive and spoke to her in a threatening manner. It was clear that Ms Taylor did not want you at her premises, but she was too frightened to ask you to leave.
9 Between this incident and the next incident on 10 April 2017 you made excuses to re-attend at Ms Taylor’s home and apologised for your earlier behaviour. At some stage between 7 April 2017 and 10 April 2017 you scorched the front door of her premises with a blow torch, telling Ms Taylor that ‘a door won’t stop me’. These facts give rise to indictment charge 1, damaging property.
10 You left Ms Taylor’s premises some time in the late afternoon or early evening of 9 April, leaving her and Mr Taliai alone in the premises. Mr Taliai remained with Ms Taylor because she was scared that you might return.
Incident No 2
11 On 10 April 2017, just after midnight, Ms Taylor and Mr Taliai were both asleep in Ms Taylor’s bedroom. You, together with an unknown male, attended at the address and forced entry via the front door, thereby damaging the door. These facts give rise to indictment charge 2, aggravated burglary.
12 Mr Taliai was awoken by the sound of banging at the bedroom door. He got up and saw you standing in the bedroom with another man whom Mr Taliai did not recognise. Ms Taylor woke up and recognised your voice and began to panic. Fearing for her safety, she pulled the bedcovers over her head. You punched Mr Taliai to the head and face six to seven times. These facts give rise to summary charge 4, unlawful assault.
13 You then jumped on top of Ms Taylor and pinned her to the bed, whilst yelling at her. These facts give rise to summary charge 5, unlawful assault. Ms Taylor was unable to understand what you were saying, but it was clear to her that you were angry. She yelled at you to let her go.
14 Ms Taylor’s neighbour, who had heard the door being kicked in, made her way into the unit and into the bedroom. The neighbour saw you on top of Ms Taylor and heard you calling her ‘a fucking bitch’. The neighbour yelled at you to ‘get of her’. You and the other male then left the premises.
15 Police attended and spoke to Ms Taylor and Mr Taliai and the neighbour.
16 As a result of the assault against him, Mr Taliai received cuts to his lips, his wrist and swelling to his temple.
17 Police were initially unable to locate you. Eventually, on 26 July 2017, you were arrested, interviewed and charged. You made a ‘no comment’ record of interview, as was your right.
Victim impact
18 No victim impact statement was made in this case. However, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the likely impact of an offence upon any victim. I am satisfied that in this case that the attacks by you on Ms Taylor and the invasion of her home would have been terrifying incidents for her. She clearly was sufficiently concerned for her welfare to have Mr Taliai stay with her to provide a level of protection. It is also clear that Mr Taliai suffered some physical injuries from your assault upon him.
Offence seriousness
19 Aggravated burglary is a serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the community views this offence.
20 In the Victorian Court of Appeal case of Hogarth v The Queen,[3] a case involving a ‘confrontational’ aggravated burglary, as is the case here, the Court said that: ‘Home invasion is a particularly nasty form of criminal conduct’[4] and a particularly ‘egregious form of aggravated burglary’.[5] This is particularly so, it was said, where, as here, the offence is premeditated and committed at night.[6]
[3](2012) 37 VR 658.
[4](ibid) 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[5](ibid) 660 [6].
[6]DPP v Brown (2004) 10 VR 328, 336 [43] (Vincent JA).
21 Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case.
22 Criminal damage, unlawful assault, and failing to answer bail are also serious enough criminal offences, the latter constituting a failure to comply with court orders.
23 A concerning aspect of your offending conduct is that it was committed against your former domestic partner and her male friend against a background of a relationship breakdown. Accordingly, it falls into the category of domestic violence.
24 Domestic violence, perpetrated mostly by males against their current or former female domestic partners, is an appalling blight on our society. As the Victorian Royal Commission into Family Violence observed:
Family violence can cause terrible physical and psychological harm, particularly to women and children. It destroys families and undermines communities.[7]
[7] Victoria, Royal Commission into Family Violence: Summary and Recommendations (2016) 1.
25 The Royal Commission was established in February 2015 as a consequence of the Victorian Government’s ‘recognition of the harm family violence causes, and of the need to invest in family violence reforms to assure the future wellbeing and prosperity of all Victorians’.[8] In announcing the Government’s intention to establish the Royal Commission, the Premier declared that family violence was ‘the most urgent law and order emergency occurring in our state and the most unspeakable crime unfolding across our nation’.[9]
[8] Id.
[9] Id.
26 The Victorian Court of Appeal has also expressed its concern with the growing scale of this scourge on our society and has emphasised the importance of general deterrence, denunciation and just punishment. The Court has made ‘repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members’.[10]
[10] Uzun v The Queen [2015] VSCA 292 [48] (Maxwell P), [39] (Priest JA). See generally Pasinis v The Queen [2014] VSCA 97 [53], [57] (Neave and Kyrou JJA); Filiz v The Queen [2014] VSCA 212, [21], [23] (Maxwell P and Redlich JA); DPP v Meyers [2014] VSCA 314, [45]–[46] (Maxwell P, Redlich and Osborn JJA); Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA); Kalala v The Queen [2017] VSCA 223 [55]–[63] (Maxwell P and Redlich JA).
27 Recently in Kalala v The Queen[11] the Court of Appeal, referring to Filiz v The Queen,[12] said that the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44’. In Kalala Osborne JA said:
[T]he prevalence of family violence and the seriousness of its consequences on the one hand, and the need for condign punishment to denounce and deter it on the other hand, are considerations which current understanding would emphasise as being of fundamental importance in cases such as the present.[13]
[11] [2017] VSCA 223 [59] (Maxwell P and Redlich JA) (citations omitted) (‘Kalala’).
[12] [2014] VSCA 212.
[13] Kalala [95].
28 In DPP v Smeaton[14] Dodds-Streeton JA observed that:
[14] [2007] VSCA 256.
Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault.
Her Honour expressed the view that sentences must:
Sufficiently express the deep abhorrence excited by a violent and brutal physical assault by an adult male on a slight young woman, which is in no degree abated by the fact of a prior relationship between the victim and the perpetrator.[15]
[15]Ibid [22].
29 Mr Dussi, your conduct in breaking into Ms Taylor’s home in the early hours of the morning in the company of another man, then bursting into her bedroom and assaulting her, and the man she had with her for protection against you, is utterly deplorable and must be denounced in the highest possible terms. You invaded the sanctity of Ms Taylor’s home, where she had the right to feel safe. You committed a gross breach of the trust you owed her as a friend and former domestic partner.
30 I consider that your moral culpability for these offences is very high and the fact you were under the influence of ‘ice’ at the time is not mitigatory. If it were not for the significant steps you have taken towards your rehabilitation, which are to be encouraged, I would have no alternative but to impose a significant sentence of immediate imprisonment with a non-parole period.
31 I am also cognizant of the need to avoid doubly punishing you in respect of the three offences you committed during this criminal episode.
Personal circumstances
32 You were born on 23 January 1976 and were aged 41 years at the time of the offending and you are 42 years old at the present time.
33 You were born in Melbourne, the youngest in a sibship of four, with two older brothers and a deceased elder sister. Your father worked in sales and as a truck driver and was present during your formative years and involved in your upbringing. You have a good relationship with your mother who still supports you and she was present in court during the plea hearing, as was one of your brothers and your sister-in-law.
34 You reported to Mr Teichmann, a clinical psychology registrar at Forensicare, who prepared a psychology report dated 24 October 2018 at my request,[16] that your parents’ relationship was positive and that you had a good upbringing. You said that your relationship with your siblings was unproblematic.
[16]Exhibit C1.
35 Your sister died five years ago of complications from longstanding alcohol abuse and medication issues. You have had difficulty dealing with her death and this may have contributed to you developing depression and increasing your use of methylamphetamine. It appears you may be suffering from unresolved grief, which may need to be addressed through psychological counselling.
36 You have been living with your parents in Bundoora for the past five years. You have a current relationship with a female friend. Up until your recent remand in custody in relation to unrelated mostly subsequent offences, you maintained fortnightly contact with your three children, a 16 year old boy, 13 year old girl and a six year old boy.
37 You attended St Francis Primary School where you were an average student academically but a very good sportsman. You then attended Parade College as a secondary student and continued to be average in academic performance. However your football prowess continued and you played in that school’s Australian Rules football team in Years 11 and 12. It was your ambition to play professionally in the Australian Football League once you finished school.
38 You played a few games in the AFL but unfortunately you injured your ankle when you were aged 18 years. You continued to play football in the Victorian Football League and in local competitions as your injury prevented you from pursuing a professional career.
39 You have a reasonably good employment history. You worked full time for a soft drink company for a period of eight years. You then drove trucks for Toll for eight years and then for a further three to four years worked casually (most days) as a truck driver for a friend. You then, at the age of 38, commenced work on sewer works for a company called Interflo. You had to leave this job after a year and have not worked consistently since that time.
40 Your first serious romantic relationship was when you were aged 26, when you commenced a relationship with the person who later became your wife. You were married for 13 years and have the three children I previously referred to. You describe this relationship in very positive terms and attribute the end of the relationship to problems you were having with gambling. This led to arguments concerning money. Your wife eventually entered a relationship with another partner. This led to arguments between you, your wife and her new male partner. This ended in both your wife and her partner obtaining intervention orders against you, which you have observed ever since.
41 Your next intimate relationship was with the primary victim, Ms Taylor, who is 12 years your junior. You apparently met her through friends who were involved in methylamphetamine (ice) abuse. You told Mr Teichmann that your relationship centred on ‘ice use’, that the relationship was intermittent, and you did not regard it as a particularly serious relationship. Nonetheless, it was according to you, mostly harmonious. For the past year you have been in an intermittent romantic relationship with a woman.
42 Your medical history is unremarkable.
43 So far as your drug and alcohol use is concerned, you first consumed alcohol to excess at the age of twelve. You tend to binge drink but do not regard your drinking as problematic. Nonetheless you do concede that violent behaviour has occurred in the past when you were drunk and that beer has a particularly bad effect on your behaviour.
44 You began smoking cannabis at the age of 15 and smoked daily until you were 25, effectively ceasing consumption of cannabis at the time of your marriage. You have only smoked cannabis occasionally since that time.
45 You told Mr Teichmann that you commenced using amphetamine at 16 years of age and commenced using methylamphetamine (‘ice’) at 25 years of age. You said you smoked ‘ice’ recreationally until you were 39 and then began smoking it every day. You told Mr Teichmann that since you are now on a Centrelink pension, you are only able to afford to use ‘ice’ once per fortnight. However, since being remanded in custody on unrelated charges, you report you have remained drug free and a negative urine drug screen analysis test helps to confirm this.
46 As noted earlier, you have had a problem with gambling which appears to have commenced when you were 18 years of age. Once you began using the ‘pokies’ your gambling became problematic and you would often spend hundreds if not up to a thousand dollars at a time.
47 Mr Teichmann opined that you show insight, insofar as you see your methylamphetamine use as a critical factor in your offending, and you recognise that you need to seek and receive treatment for this.
48 During your engagement in the CISP program while you were on remand for the present offences, you received drug and alcohol treatment with Siobhan Donohoe at Caraniche in 2017. This you said you found to be very helpful. You reflected to Mr Teichmann that the regime of appointments and monitoring had helped you to remain abstinent from ‘ice’ and that longer and more intense support of this kind would be of benefit to you and you are prepared to engage in such treatment. You told Mr Teichmann that you were motivated to cease the use of ‘ice’ and recognised that it was a key causal factor in your offending.
49 During the CISP program you were waitlisted for a men’s behaviour change program. During the program you also attended five sessions with a psychologist, Emmanuel Boultadakis. You reported to Mr Teichmann that you did not find these psychological sessions as helpful as the drug and alcohol treatment you received. However, you indicated to him that you were open to receiving psychological treatment in the future, especially for anger management. I note that you have attended anger management treatment sessions whilst currently incarcerated and you are finding this helpful.
50 You told Mr Teichmann that you and the primary victim, Ms Taylor, resumed your intimate relationship after she had made statements to police regarding the instant offending. You also told Mr Teichmann that you stayed at her home the night of the first incident because you had nowhere else to stay. I have no reason to disbelieve you in regard to these matters.
51 You expressed ‘regret’ to Mr Teichmann for behaving in the manner you did throughout the offending and you were adamant that you would not have behaved in this way were it not for your abuse of ice.
52 Mr Teichmann conducted a number of psychological tests on you. Your scores on the Depression, Anxiety, Stress Scales (DASS) fell within the ‘normal’ range. Your score of 8 on the Alcohol Use Disorders Identification Test (AUDIT) indicates that you have problematic consumption of alcohol. Mr Teichmann notes that this accords with your account of alcohol consumption prior to your recent incarceration. Your score of 28 on the Drug Use Disorders Identification Test (DUDIT) indicates that it is highly probable that you are dependent on one or more drugs. Mr Teichmann notes that you told him that immediately prior to your recent incarceration your ice use has been limited by you income. According to Mr Teichmann, this suggested that your score would have been higher were you being assessed on your past usage.
53 Mr Teichmann also administered a risk assessment tool, namely the Historical Clinical and Risk Management 20 (HCRM-20). This indicated that over the medium to long term you pose a moderate risk of violence in the community. However, Mr Teichmann considered there are a number of protective factors present in your case, particularly your very supportive parents with whom you reside when not in custody.
54 According to Mr Teichmann you appear motivated to tackle your ‘ice’ addiction and you have said you wish to engage in more intensive and supportive treatment than you have received in the past. You also wish to return to full time employment and you want to continue having regular contact with your children.
55 It is clear from Mr Teichmann’s report that no Verdins principles[17] are engaged in your case.
[17]See R v Verdins (2007) 16 VR 269.
Prior criminal history
56 Your prior criminal history dates back to 28 March 1994 and extends through eight separate court appearances concluding on 18 November 2008. It is to your credit that you managed to remain offence free for some ten years. Your prior convictions include burglary, theft, recklessly cause injury, assault in company, unlawful assault, criminal damage and some minor drug offences.
57 It would appear that the use of ‘ice’ with your then partner, Ms Taylor, has taken you off the rails, as it were, and has led to you into reoffending after almost 10 years of offence-free behaviour in the community.
58 On the plea I received a Court Integrated Services Program (CISP) final progress report dated 27 January 2018.[18] You agreed to a treatment plan addressing illicit substance use, mental health issues and family violence. You were placed on CISP on 25 August 2017 and exited from the program on 12 December 2017.
[18]Exhibit D2.
59 On 22 September 2017, you were referred for an episode of complex counselling (15 plus sessions) with ADO counsellor Siobhan Donohoe from Caraniche in Abbotsford. You attended eight out of nine counselling sessions with her. She reported that you display increased insight into your past substance use and are able to recognise some of your unhelpful triggers. You have also been open to discussion of how your emotional states are affected by substance use and you appear to have developed an understanding of effective coping mechanisms that can assist in your working towards your treatment goals.
60 You have also taken positive steps towards managing your self-control more effectively. Ms Donohoe reports that overall you have been honest and open and willing to explore different areas of your life surrounding and relevant to your substance use. You have expressed a willingness to continue to engage in AOD counselling.
61 So far as your mental health is concerned, while there are no formal diagnoses in your case, your local general practitioner has prepared a mental health care plan with your which you were engaging in prior to your recent incarceration. You have attended treatment sessions with Mr Emmanuel Boultadakis, a clinical psychologist. However, you told Mr Teichmann that you did not find these sessions particularly beneficial. Moreover, on 27 October 2017 you attended a psychiatrist, Dr Prasanna, for a mental health assessment. You were prescribed Seroquel to assist with your disrupted sleep pattern and you have been compliant with this medication.
62 As I earlier noted, you have indicated a willingness to engage in a men’s behaviour change program and you were waitlisted for such a program.
63 According to the report I received from your CISP case manager, Ms Kim Robertson,[19] you have been engaging with the Child Protection Unit in Cheltenham in relation to access to your children. As part of that exercise you have been undergoing urine screens which have all been clear and consequently you were having regular contact with your children prior to going into custody.
[19]Exhibit D2.
Subsequent alleged offences
64 You are presently on remand in relation to a number of subsequent offences which mostly are alleged to have been committed after the offending which gives rise to the matters before me. I was advised by your counsel that you intend pleading guilty to these charges in the Magistrates’ Court. It appears the proceedings in relation to those charges have been adjourned to 31 January 2019, pending the outcome of the present proceedings in this Court.
65 I was provided with three police summaries in relation to those charges. The first alleged offending predates the current charges and appears to comprise a charge of theft from a shop, possessing proceeds of crime and possessing cannabis. These offences are alleged to have occurred on 7 February 2017. You were observed to be drug affected at the time of the alleged theft and later when police arrested you at your premises, you were also observed by them to be ‘heavily drug affected’. Indeed, owing to your ‘intoxicated state’, you were unable to be interviewed and were placed in a cell for four hours in order to ‘sober up’.
66 The next alleged offending occurred on 27 July 2017, after the present offences were committed. It is alleged that you smashed the side window of a motor vehicle and removed the alleged victim’s handbag from the front passenger seat. The handbag contained her wallet and various bank cards. You then allegedly fraudulently used one of her bank cards 11 times to purchase goods to the value of approximately $760. In relation to this offending, you are charged with theft from a motor vehicle and criminal damage, together with 11 counts of obtain property by deception.
67 The final matter allegedly occurred on 27 August 2018 whereby it is alleged you stole a black jumper from a shop in Bundoora. You were pursued by a security guard and a scuffle ensued during which you used both of your fists to punch the security guard, giving rise to charges of intentionally causing injury and like alternatives. You also, whilst being subdued, allegedly bit the security guard’s right hand and continued to wrestle with him until you were handcuffed by him. Charges arising out of this incident include intentionally cause injury, theft and commit an indictable offence whilst on bail.
68 As a consequence of this last alleged offending, you were remanded in custody and have remained so since 27 August 2018. However, your bail in relation to the present matters has never been revoked. This means the time you have spent in custody since 27 August this year — a period of 67 days, not including this day — is not doubly warranted time spent in custody. Accordingly I cannot declare pre‑sentence detention in respect of this period, that time not being a period during which you were held in custody in relation to proceedings for the offences which are before me.[20]
[20]S 18 Sentencing Act 1991.
69 Nonetheless, I will declare that I have taken the full 67 days you have spent in custody since 27 August 2018 into account in sentencing you on indictment charge 2 in accordance with the Renzella discretion[21] or, alternatively, in the application of the totality principle to your case.[22] Your counsel accepted that this would have the effect that the magistrate dealing with your outstanding charges cannot declare PSD in respect of this period. I will direct that a copy of my revised reasons for sentence be provided to the magistrate dealing with your outstanding matters.
[21] R v Renzella [1997] 2 VR 88.
[22]See El-Waly v The Queen (2012) 46 VR 656, 673–4 [110]–[112] (Neave, Weinberg JJA and Bell AJA).
70 While subsequent offending cannot be taken into account in the same way as prior convictions can, it would normally bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I would give to specific deterrence and protection of the community in sentencing you for the present offences. They would be relevant also to my assessment of your prospects of rehabilitation.[23] Having said that, I recognise that you are yet to plead guilty and be convicted for these outstanding matters, and despite your counsel’s indication of your intention to plead guilty, these things can change. Accordingly, I have given no weight to your outstanding matters. They are only relevant as background to the application of the Renzella discretion and/or the totality principle in this case.
[23] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310-1 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77-78] (Santamaria JA).
Mitigating circumstances
71 In written submissions on plea dated 21 March 2018,[24] your counsel relied on a number of mitigating circumstances. You pleaded guilty at a relatively early stage in the proceedings, albeit the matter was booked in for a contested plea hearing on 1 November 2018. However, the matter resolved into a non-contested plea hearing before me. Your relatively early pleas of guilty have utilitarian benefit and also indicate an acceptance of responsibility on your part and a willingness to facilitate the course of justice.
[24] Exhibit D1.
72 Moreover, in light of the matters contained in the letter that you wrote which was handed to me during the plea hearing,[25] I am prepared to sentence you on the basis that you are genuinely remorseful for your offending conduct and recognise the effect this would have had on the victims. At the adjourned further plea hearing today counsel for the Director accepted I should give weight to the fact you are genuinely remorseful for your offending.
[25] Exhibit D6.
73 As I have previously related, you have a reasonably good employment history. You have the support of your mother, Patricia Dussi, with whom you resided until your recent incarceration. I have taken into account the matters contained in her undated letter.[26] It is clear that you are her carer and that she has a number of significant medical issues to deal with. She also has the care of her grandson, the son of your late sister. However, the circumstances surrounding your mother and your nephew are not such as to give rise to the exceptional circumstances required for me to take these matters into account, in and of themselves, as a mitigating circumstance. Nonetheless, I do take into account that any sentence of imprisonment that you will be required to serve will weigh more heavily on you by reason of your being unable to provide care to your mother and nephew.
[26] Exhibit D3.
74 As far as the circumstances of the offending are concerned, your counsel submitted that whilst the offence was committed in the context of a volatile and drug-fuelled relationship, and it is an example of an ‘intimate relationship offence’, he emphasised the following circumstances: the offending occurred over a brief period; no weapon was used in the offending; you were known to both victims; you had been present with them in the days leading up to 10 April 2017; and you had been previously residing at the address where the offending occurred.
75 Your counsel emphasised the significant steps you have taken since committing these offences towards your ultimate rehabilitation. As I noted earlier, whilst on bail you engaged responsibly with the Court Integrated Services Program. You engaged productively with Ms Siobhan Donohoe, the alcohol and drug counsellor from Caraniche, and, importantly, you have been abstinent in relation to drugs since your release from custody and prior to your most recent remand in relation to other matters. As I said earlier, it appears you have also remained drug-free whilst in custody.
76 It was submitted on your behalf that your prospects for rehabilitation can be described as ‘favourable’, taking into account a number of protective factors including your good work history, abstinence from drug use and relapse prevention counselling, a supportive new partner and engagement with your children.
77 Today, counsel for the Director submitted that ‘you have displayed a significant degree of insight’ into the causes of your offending behaviour and I could act on the basis that your prospects of rehabilitation are ‘good’. I am prepared to assess them as good, but all will depend on your capacity to remain drug-free upon your release from custody. Your willingness to actively engage in a wide range of programs at that time augers well for your future successful reintegration into the community as a law-abiding citizen.
78 Since your most recent incarceration on remand, you have engaged further in productive rehabilitation. You have undertaken a three hour AOD and anger management course, a 24 hour managing ice addiction program and a six hour AOD and depression program.[27] I was also provided by your counsel with the urine analysis test results summary for a random drug screen conducted on 26 September 2018 which returned a negative result.
[27]See Certificates of Completion – Exhibit D5.
79 I am impressed with the determination with which you have sought to engage in rehabilitation including treatment for your drug addiction, psychological assistance with your grief, remaining abstinent from drugs and your engagement in programs directed to addressing the inappropriate behaviour which has given rise to your offending conduct in the past. Somewhat cautiously, I am prepared to sentence you on the basis that you have good prospects of rehabilitation provided you remain drug free. Moreover, provided you remain drug free, I am of the view that your risk of reoffending is relatively low.
Sentencing principles
80 I have had regard to current sentencing practices in relation to aggravated burglary in particular in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[28] It is difficult to gauge more than a very general yardstick from so called comparable cases given the wide range of offending conduct which can constitute the offence of aggravated burglary and the myriad of personal circumstances pertaining to individual offenders. I have had regard also in particular to the decisions of the Victorian Court of Appeal in Hogarth v The Queen[29] and DPP v Meyers[30] and also to the cases to which I was referred by your counsel.[31]
[28] (2017) 91 ALJR 1063.
[29](2012) 37 VR 658.
[30](2014) 44 VR 486, 489 [3]–[6], 498 [47]–[49] (Maxwell P, Redlich and Osborn JJA).
[31] DPP v Brett McFarlane [2016] VCC 1476; DPP v Jayden Paul Smart [2016] VCC 1401; and DPP v Peterson [2016] VCC 642.
81 I am of the view that the offending conduct comprising Charge 2 on the indictment is a mid-range example of offences of that nature. To the extent that I have been able to gain assistance from comparable cases, I have sought to do so in your case.
82 The basic purposes for which a Court may impose a sentence are just punishment, deterrence – both specific and general – rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your crimes on any victims and your personal circumstances.
83 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
84 Given the serious nature of the offence of aggravated burglary, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. However, this must be tempered by the fact that you have undergone a significant level of rehabilitation directed towards minimising the risk of you reoffending and intended to reintegrate you back into society when you are released from custody. I must also give some weight to specific deterrence and protection of the community, given the nature of the offending conduct and your prior criminal history. As I said earlier, I assess your prospects of rehabilitation as being good provided, you remain drug free upon your release from custody.
85 I have found this to be a difficult sentencing exercise. As is almost always the case, the various sentencing considerations and principles pull in different directions. The seriousness of the offence of aggravated burglary committed by you, given its objective facts and circumstances, cannot be gainsaid. As against this, you have made a determined effort to avail yourself of every avenue of rehabilitation available to you and you have been largely successful to date in these endeavours. I consider it is in yours’ and the community’s interest that you be encouraged and supported in this.
86 After much anxious consideration, I have decided that in your case it is appropriate to structure a sentence which will maximise your prospects of rehabilitation, while giving what I regard to be appropriate weight to general deterrence, denunciation and just punishment in particular. In Markovic v R,[32] the Victorian Court of Appeal affirmed the ‘proposition of longstanding and high authority, that there is always a place in sentencing for the exercise of mercy where a Judge’s sympathies are reasonably excited by the circumstances of the case’.[33]
[32](2010) 30 VR 589.
[33] Markovic 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) citing R v Osenkowski (1982) 30 SASR 212, 212-13 (King CJ).
87 Ultimately, I am moved by your circumstances, in particular your efforts at rehabilitation, to impose a very lenient overall sentence upon you for such serious offending. While you are not a youthful offender, nonetheless I am mindful of what the Victorian Court of Appeal has said in Bradshaw v The Queen[34] and Boulton v The Queen.[35]
[34][2017] VSCA 273 [49].
[35](2014) 46 VR 308, 311 [2].
88 I have concluded, consistent with my earlier indication of imposing a merciful sentence in your case, that a combination sentence of imprisonment coupled with a relatively lengthy community correction order is the appropriate disposition to achieve the purposes for which this sentence is imposed.[36]
[36]Sentencing Act ss 5(3) and (4).
89 Today, while the prosecutor maintained her primary submission made at the earlier plea hearing that the only appropriate sentence in this case was an immediate term of imprisonment with a non-parole period, she accepted that it was open to me to exercise mercy in your case and impose what would otherwise be considered to be a very lenient sentence on the aggravated burglary charge.
90 With respect to the custodial component of the total effective sentence I intend to impose, I will add the pre‑sentence detention (PSD) of 32 days to the twelve months maximum sentence permitted under s 44 of the Sentencing Act 1991 and declare that PSD as a period time held in custody in relation to these offences to be reckoned as a period of time already served under this sentence.
91 Accordingly, the time yet to be served under the sentence I am about to impose will be 12 months. This sentence will be combined with a CCO the terms of which I will elaborate presently.[37]
[37]See DPP v Rivette [2017] VSCA 150 [61] (Ashley and Priest JJA). The CCO is attached to these reasons for sentence.
92 Moreover, I declare that in sentencing you on indictment charge 2 (aggravated burglary) I have taken into account under the ‘Renzella’ discretion the 67 days you have spent in custody from 27 August 2018 until, but not including, this day.
Stand up, Mr Dussi.
On the charge of damaging property (charge 1), you will be convicted and sentenced to 1 month’s imprisonment.
On the charge of aggravated burglary (charge 2), you will be convicted and sentenced to 12 months’ imprisonment together with a 3 year community correction order with 600 hours of unpaid community work and the treatment and other conditions which I will presently explain to you.[38]
[38]The CCO is attached to these reasons for sentence.
On related summary offence 4 (unlawful assault of Henry Taliai), you will convicted and sentenced to 45 days’ imprisonment.
On related summary offence 5 (the unlawful assault of Emily Taylor), you will convicted and sentenced to 1 months’ imprisonment.
On related summary offence 9 (the unlawful assault of Emily Taylor on 7 April 2017), you will be convicted and sentenced to 1 months’ imprisonment.
On related summary offence 11 (fail to answer bail), you will be convicted and sentenced to 7 days’ imprisonment.
I order that the sentence I have imposed on indictment charge 2 will be the base sentence. And I further order that 7 days of the sentence imposed on indictment charge 1, 11 days of the sentence imposed on related summary offence 4, 7 days of the sentence imposed on related summary offence 5 and 7 days of the sentence imposed related summary offence on 9 be served cumulatively with the sentence I have imposed on indictment charge 2 and with each other. The sentence imposed on related summary offence 11 will be served concurrently with all other sentences.
This makes a total effective sentence of 12 months’ and 32 days’ imprisonment together with a 3 year community correction order with 600 hours unpaid community work and the other terms and conditions which I will explain to you.[39]
[39]The CCO is attached to these reasons for sentence.
I declare 32 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
I will make the order sought by the Crown under s 464(ZF) for a forensic procedure.
I direct that a copy of these reasons for sentence be provided to the magistrate hearing your outstanding matters in that court.
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