Director of Public Prosecutions v Fleming

[2021] VCC 1981

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GUY FLEMING (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2021
DATE OF SENTENCE:	1 December 2021
CASE MAY BE CITED AS:	DPP v Fleming
MEDIUM NEUTRAL CITATION:	[2021] VCC 1981

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated burglary — common assault — damaging property — driving whilst suspended — driving whilst having a blood alcohol content exceeding the prescribed limit — plea of guilty — early plea — victim impact statement — family violence — intoxication — general deterrence — denunciation — COVID-19 — prior good character — parsimony — community correction order — fine

Legislation Cited:      Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic); Sentencing Regulations 2011 (Vic);

Cases Cited:Director of Public Prosecutions (Vic) v David [2019] VCC 1483; Director of Public Prosecutions (Vic) v Evans [2019] VSCA 239; Director of Public Prosecutions (Vic) v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Jiang v The Queen [2019] VSCA 126; Okutgen v The Queen (1982) 8 A Crim R 262; R v Henderson-Drife [2007] VSCA 211; Smith v The Queen (1982) 7 A Crim R 437

Sentence:                  Community correction order of three years

Section 6AAA declaration: total effective sentence of three years with non-parole period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms Rutherford	Solicitor for the Office of Public Prosecutions
For the Accused	Mr Allen	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Guy Fleming,[1] you have pleaded guilty to one charge of aggravated burglary, for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to two charges of common assault, for which the maximum penalty is five years’ imprisonment, one charge of criminal damage, for which the maximum penalty is a term of imprisonment of 10 years, and two related summary offences of driving whilst suspended, for which the maximum penalty is 240 penalty units or two years’ imprisonment, and driving whilst having a blood alcohol content exceeding the prescribed limit, the maximum penalty for which is 20 penalty units.

[1] A pseudonym.

2You have no relevant criminal history.

3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief, the circumstances of your offending were as follows. On 30 August 2020, you were 52. You were married to Rosa Fleming.[2] Approximately two years prior, your wife had reconnected with an old school friend, Julian Sandoval,[3] at a school reunion. The pair had an affair. There was some dispute at the plea hearing whether the affair was in fact over as at 30 August 2020, which I do not regard as of any real importance. You had been aware of the affair for around 12 months. Whether or not it was ongoing, clearly something happened on the night in question to trigger your rage.

[2] A pseudonym.

[3] A pseudonym.

4At around 9:30pm, you left your home and went to the home of Mr Sandoval, which he shared with his partner, Jill Lindsey.[4] Mr Sandoval received a phone call from Ms Fleming, who stated that she had had an argument with you, that you had been drinking, that you were angry and that you wanted to come and kill him. A few minutes later, Mr Sandoval, who was at home with Ms Lindsey, saw you through his bedroom window coming towards his bedroom door. Mr Sandoval went to the door and held the handle to prevent you from entering the property. While holding the handle, Mr Sandoval could feel the door handle moving.

[4] A pseudonym.

5You entered via the back door, holding pieces of wood from a chair. You confronted both Mr Sandoval and Ms Lindsey. You said to Ms Lindsey, ‘Get out of my way, I am going to kill him’, meaning Mr Sandoval. Ms Lindsey told you that the relationship with your wife was over and that she was in a relationship with Mr Sandoval. You screamed that Mr Sandoval and Ms Fleming, your wife, had been messaging each other and that you had seen all of the messages. Mr Sandoval asked you to leave. He said that he was worried about you and to settle down. It was apparent to both of your victims that you were intoxicated (charge 1 —aggravated burglary).

6Mr Sandoval walked out of the house and told Ms Lindsey to call the police. You pushed Ms Lindsey’s right shoulder with your right forearm and followed Mr Sandoval out of the house and onto the tram tracks on the road. While outside, Mr Sandoval attempted to reassure you that there was nothing going on. You had both your hands clenched into fists and repeatedly tried to punch Mr Sandoval, who avoided your blows. Ms Lindsey could hear you repeatedly yelling at Mr Sandoval that you were going to kill him and burn his house down (charges 2 and 3 — common law assault).

7Ms Lindsey and another resident went over to you in an attempt to calm the situation down. Ms Lindsey told you the police had been called and were on their way. You subsequently went to your car. You began to drive away but then stopped out the front of the house, exited the car and stated to Mr Sandoval that you would kill him and burn the house down. You walked over to Mr Sandoval’s wooden letterbox, ripped it out and threw it on the ground, causing damage to it.

8Ms Lindsey again told you the police were coming, and you ran back to your car. Before you entered your car, you looked at Mr Sandoval and told him you were going to kill him and burn his house down. You subsequently drove away.

9At approximately 9:52pm, police observed you driving. Police intercepted you and placed you under arrest. Police enquiries with VicRoads revealed that at the time of the intercept, your licence was suspended.

10A preliminary breath test was conducted which returned a positive result. You were conveyed to the police station, where a breath test returned a breath alcohol concentration above the prescribed limit of 0.05, namely 0.06.

11While at the police station, you participated in a record of interview with investigators. During the interview, you admitted that you went to Mr Sandoval’s home but downplayed your offending, telling police you only intended to send Mr Sandoval a strong message without intending to harm him or threaten him. You denied threatening to kill Mr Sandoval and you denied threatening to burn his house down.

12This matter resolved on 3 May 2021, the date of the scheduled committal hearing. There was no evidence called. There had been attempts on your part to resolve the matter since 14 December 2020. Your plea is an early one. It is of significant utilitarian value in the context of the delays and disruptions caused to the administration of criminal justice in this State by the COVID-19 pandemic, and the measures in place to deal with it. I also accept that your plea is indicative of remorse on your part.

13Both Mr Sandoval and Ms Lindsey have made victim impact statements. Mr Sandoval says that your offending was terrifying and that it has affected his sense of wellbeing and personal safety. Mr Sandoval says that your threats to kill him and burn his home remain with him to this day, and he has had to spend around $20,000 for upgraded home security. Mr Sandoval says he felt helpless to protect his partner, and he remains fearful that you will come back and harm her.

14Ms Lindsey says that your offending has taken an extensive emotional toll on her. She says she has lost her feeling of personal safety and security in her home. She says she had only recently moved into her partner’s home before you invaded it. She says, ‘This has been the most terrifying and unexpected event that I have experienced in my whole life’.

15The law recognises that the offence of aggravated burglary causes precisely the kind of harm described by both Mr Sandoval and Ms Lindsey. People are entitled to feel safe in their homes. Enraged, armed and intoxicated intruders, such as you, forcibly entering in the middle of the night causes both immediate and ongoing fear and a loss of a sense of personal safety and personal wellbeing in the victims.

16Yours was very serious offending. I regard it as a crime of family violence. Your victim was not your wife, but it was the man with whom you suspected she was in a relationship, and of course there was a second victim, Ms Lindsey, who was entirely uninvolved.

17You had been drinking and, as I stated earlier, there must have been some triggering event which precipitated your rage. But relationship breakdown and suspected infidelity are no excuse for family violence. It may have been, in the past, offenders were given some leeway because of a loss of control occasioned by relationship breakdown, but those days are well and truly over. As numerous recent Court of Appeal authorities make clear, male violence is not to be tolerated or excused by claims of loss of control.

18In the case of Director of Public Prosecutions (Vic) v Evans, the Court of Appeal stated,

Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.

For similar reasons, nothing should be said in sentencing reasons to suggest that statements by such an offender to the effect of ‘I just snapped’ or ‘I’d had enough’ in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But a resort to violence can never be condoned.[5]

[5] [2019] VSCA 239, [84]–[85] (Maxwell P, T Forrest and Weinberg JJA).

19I also reject the submission made by your counsel, Mr Allen, that I should treat your intoxication as mitigatory. Your consumption of alcohol has always been modest and well-regulated, and you drank too much on the night in question. This had a disinhibiting effect and you acted uncharacteristically, but this does not amount to ‘exceptional circumstances’ necessary to enliven the very rare mitigatory application of the ‘out of character’ exception in cases of intoxication. I find your intoxication is merely one factor which explains and puts into context your offending. It is neither aggravating nor mitigatory.

20I also accept the prosecution submission that your offending was not without some degree of premeditation and was not entirely spontaneous, as you armed yourself at your home and drove around 14 km to the victim’s home.

21Mr Allen submitted that the broader context for your offending was the very significant stress you were under at the time of the offence and that I should regard your offending as situational. He submitted that you and your family were under significant financial pressure which had worsened during the extended lockdowns necessitated by the COVID-19 pandemic. There was also significant emotional tension in the household. Your wife was suffering depression and your children were confined to the house and being homeschooled. I accept that this was a difficult period in your life, and this is the context of your offending. Nevertheless, your offending remains entirely without justification and your moral culpability high.

22I turn now to consider your personal circumstances. You are presently 53 years old. You were born into a loving and stable family. You attended secondary school and then completed an apprenticeship in carpentry. You have worked in construction all your life. You started your own company in 2001. You experienced financial difficulties in 2012 and your company went into liquidation. You were forced to sell your family home.

23After this difficult period, you recovered financially by working in management roles in the building industry. But again, this time because of the economic downturn caused by the COVID-19 pandemic, you lost your employment and experienced financial hardship.

24Since May 2021, you have been employed as a site manager on a major construction site. Your employer wrote a character reference for you in which he said that after this project, he would engage you for another major project.

25A reference was also tendered from a friend who has known you since 2015 in the construction industry. He described you as honest, hardworking, and dedicated. Another friend also provided a reference. He says he has known you over 20 years socially, in business and in the community. He described you as a dedicated father. He says you were instrumental in setting up an organisation which is a support service for men.

26Finally, there was a reference from a chartered accountant. He says he has known you since 2006 and sees you most weeks as a fellow member of a Christian men’s fellowship group. He describes you as a hardworking, sincere, genuine and faithful family man. He says you are a dedicated father to your children. He says you are a pillar of the community and have volunteered with many organisations. You have used your skills as a builder to volunteer in Australia and abroad. You have been involved in the construction of community halls and schools in Marysville, and in the construction of schools and orphanages in South Africa.

27You married your wife Rosa in 1991 and you have three children now aged between 13 and 25. Your wife has suffered depression for a number of years. You have now separated. You have no history of mental health difficulties and no history of substance abuse. It is clear that you have led a productive life characterised by hard work, service to others and honesty.

28I turn now to consider the submissions of the parties and I begin with the prosecution. Ms Rutherford, who appeared to prosecute, submitted that your offending was serious, and the seriousness of the offence of aggravated burglary is reflected in a maximum penalty of 25 years’ imprisonment. She referred me to the cases of Director of Public Prosecutions (Vic) v Meyers[6] and Hogarth v The Queen,[7] in which the Court of Appeal discussed the inherently dangerous nature of the offence of aggravated burglary, especially when committed in confrontational home invasion situations, and the violation of a person’s sense of safety in his or her own home which the offence involves and, of course, this is undoubtedly so.

[6] (2014) 44 VR 486.

[7] (2012) 37 VR 658.

29She submitted that your offending was to some extent premeditated and, as I have indicated, that is a submission I accept. She submitted that upon entry into the victims’ home, you persisted in your offending behaviour, assaulting and threatening the victims and damaging property. Ms Rutherford referred me to the case of R v Henderson-Drife,[8] in which a mature offender of prior good character, suspicious that a woman with whom he was in a relationship was having an affair, went to the household of his supposed rival with a gun and a silencer. The sentence on the charge of aggravated burglary in this case was 20 months’ imprisonment.

[8] [2007] VSCA 211.

30Ms Rutherford acknowledged that this was a more serious example of the offence, but submitted, notwithstanding your prior good character, this type of offending is so serious as to warrant a period of immediate custody. She submitted on behalf of the prosecution that your offending warranted a sentence of imprisonment combined with a community correction order.

31Mr Allen, who appeared on your behalf, submitted that your offending was situational and out of character. Much of his plea focussed on your good character, particularly as you are a mature person with no history of offending or any other type of antisocial behaviour. He referred me to the cases of Smith v The Queen[9] and Okutgen v The Queen,[10] in which the Court said,

the applicant has reached maturity — and indeed, perhaps one might say middle age — without any breach of the law at all, that he has lived a decent, honourable life, that he has raised a family, that he has been in constant work while he could work and that he has engaged in community activities, particularly in respect of the migrant community. A man of this age, when first convicted, can I think call in aid his character and is entitled to ask the court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up till the moment of conviction.[11]

[9] (1982) 7 A Crim R 437 (‘Smith’).

[10] (1982) 8 A Crim R 262 (‘Okutgen’).

[11] Ibid 265–6 (Starke J).

32Mr Allen submitted that the principles articulated in the older cases of Smith v The Queen[12] and Okutgen v The Queen[13] were recently explicitly endorsed in the case of Jiang v The Queen,[14] which was a Court of Appeal case in which a mature offender of hitherto good character entered a neighbouring business armed with a meat cleaver in response to a dispute of a trivial nature. The appellant in that case was sentenced in this Court to a term of imprisonment involving a head sentence and a non-parole period which was reduced on appeal to a two-year community correction order. The Court of Appeal in that case said,

We have no hesitation in concluding that the sentence imposed in this case is manifestly excessive. …

[The offender was] a hard-working man of previously unblemished character [who] acted in the heat of anger.[15]

Mr Allen acknowledged that the offending in Jiang v The Queen was less serious than yours but he relied on the principles articulated in the decision.[16]

[12] Smith (n 9).

[13] Okutgen (n 10).

[14] [2019] VSCA 126 (‘Jiang’).

[15] Ibid [31], [33] (Priest and Kaye JJA).

[16] Jiang (n 14).

33Mr Allen also referred me to a decision of this Court, Director of Public Prosecutions (Vic) v David, where offending which was more violent and more serious than yours and which carried the risk of deportation for the offender resulted in the imposition of a community correction order.[17]

[17] [2019] VCC 1483.

34Mr Allen submitted that a community correction order was within range as a disposition and was capable of achieving genuinely punitive, deterrent and rehabilitative ends.

35I had you assessed for a community correction order and you were assessed as suitable. I should say that, at the time of this sentence, the mental health assessment which was ordered in conjunction with that assessment by Corrections has not been received, but I note, in the report by Corrections, they have said that that should not impede a sentence proceeding today, as any recommendation by that mental health assessment team can be implemented in any order if I am to impose one.

36I now turn to my conclusions. Your offending is serious. I have discussed at some length its objective gravity. The predominant sentencing principles are general deterrence and denunciation. Any sentence I impose must also recognise the considerable harm that you have caused your two victims.

37I take into account the current difficult conditions in custody occasioned by the COVID-19 pandemic and the measures put in place to address it, and I take account of the significance of your plea in the current climate, which I have already addressed in these remarks. You have shown remorse and your prospects for rehabilitation are good, if not excellent. I regard your risk of reoffending as low.

38I give significant weight to your prior good, indeed exemplary, character, and I regard your offending as a lapse of judgment, albeit a very serious lapse of judgment in an otherwise blameless life.

39I have concluded that in your case I can give proper expression to the principles of general deterrence and denunciation without the need to sentence you to a term of imprisonment involving a period of actual custody. I am mindful also of the principle of parsimony; that a sentence involving a period of immediate custody should be the last resort.

40Taking into account all the matters I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows. On charges 1–4, you are convicted and sentenced to a three-year community correction order. I will go through the terms of that order shortly. On the summary charge of drive while disqualified, you are convicted and fined $2000. On the summary charge of drive while exceeding prescribed concentration of alcohol, you are convicted and fined $1,000.

41Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three years, with a non-parole period of two years.

42I do not really have to do this, I do not think, but I will, out of an abundance of caution. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.

43I do not propose to make any orders on your licence.[18]

[18] Note: the offender’s licence was cancelled and he was disqualified from obtaining a licence for six months pursuant to s 50(1) of the Road Safety Act 1986 (Vic).

44Now, the community correction order’s terms are as follows. It’s a three-year community correction order which will commence today and will therefore end on 30 November 2024. The first term is that you must, within two working days, report to Community Correctional Services. That may be something that you can do over the phone at this time, you’ll need to find out, but you’ve got to report to Community Correctional Services within two days.

45The mandatory terms of the order are as follows. You must not commit another offence for which you could be imprisoned during the time that the order is in place. Most offences, not simply very serious offences like aggravated burglary, but most criminal offences potentially carry a term of imprisonment, so you must not offend in any way, shape or form, during the term of the order. You must comply with any obligations or requirements as prescribed by reg 17 of the Sentencing Regulations 2011 (Vic).

46You must report to and receive visits from Corrections. You must report to the Community Corrections Centre within two clear working days. I have explained that to you, that may be done by telephone at the moment, you will need to check.

47You must let a community corrections officer know within two working days of any change of your address or change of your job. You must not leave Victoria without first getting permission to do so by Corrections and you must obey lawful instructions given to you by Corrections. They’re the mandatory terms.

48The other conditions that are going to be placed on the order are that you must perform 300 hours of unpaid community work over the period of the three years. You must undergo treatment and assessment for alcohol abuse or dependency as directed by the regional manager. You must participate in courses designed to address the factors relating to your offending as directed by Corrections or the regional manager.

49Now, 50 hours of any treatment and rehabilitation courses or programs that you undertake can be credited as work hours for the purposes of the order. You’re to be under the supervision of Community Corrections for three years, and there will be judicial monitoring in front of me. You must attend for your first review on 1 June 2022 at 9:15am in this Court. By the time we get to that time, June, next year, it may be that you’ll be required to come into Court, I don’t know.

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