Director of Public Prosecutions v Garner (a pseudonym)
[2023] VCC 1621
•7 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHELE GARNER (A PSEUDONYM) DANA ANDERSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2023 | |
DATE OF SENTENCE: | 7 September 2023 | |
CASE MAY BE CITED AS: | DPP v Garner (a pseudonym) & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1621 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- Sentence
Catchwords: Aggravated Burglary --- Common Law Assault --- Relationship breakdown --- Low Gravity --- Plea of Guilty --- Rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] VSCA 102; Bugmy v R [2013] HCA 37; Sabbatucci v The Queen [2021] VSCA 340; Roosevelt Newton (a pseudonym) v The King (2023) VSCA 22
Sentence: Garner - $1500 fine; 2 year Undertaking of Good Behaviour; Anderson - 12 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Dearman (Plea) | Office of Public Prosecutions |
| Ms E. Phillips (Sentence) | ||
| For the Offender Garner For the Offender Anderson | Mr J. Lowy Ms K. Ballard | McNally & Gleeson Lawyers Doogue & George Criminal Lawyers |
HER HONOUR:
1Dana Anderson[1] and Michele Garner,[2] on 4 September 2023 you pleaded guilty to one charge of aggravated burglary and two charges of common law assault.
[1] A pseudonym.
[2] A pseudonym.
2
You, Ms Anderson, are now 31 years old and were 30 at the time of the offending. Ms Garner, you were 25 at the time of the offending and are presently 26.
You both met in early 2022.
3
The first victim of this offending, Martina Mahoney,[3] was known to you,
Ms Garner, having been your partner for about two years before you and she separated in early 2022. You had previously lived at Ms Mahoney’s address in Thornbury Park. The second victim, India Ellis,[4] was Ms Mahoney’s partner at the time of your offending.
[3] A pseudonym.
[4] A pseudonym.
Summary of offending
4On 27 June 2022, Ms Mahoney contacted a third party by sending them a photo of a bundle of Ms Garner’s mail which had arrived at her address. She suggested that you change your mailing address. That contact must have been relayed to you, and you decided to go and collect your belongings from her. You took Ms Anderson with you for that purpose.
5
The CCTV footage from her home shows both Ms Mahoney and her partner
Ms Ellis at the front porch area. It is clear that on seeing you they hurried inside. You, Ms Garner, on seeing them going into the house rushed to the front door and pushed it open. It seems tempers flared at that point. You pushed your way in, with you, Ms Anderson, going in behind.
6Your intention, given the heat which had developed in this confrontation, was to assault one or both of the women. Your entry as trespassers for that purpose constitutes the offence of aggravated burglary.
7There was a short physical altercation between yourselves and Ms Mahoney and Ms Ellis at the time of your entry into the house, which lasted about eight seconds.
8
You all then moved back out to the front porch, and there was a short scuffle of approximately 32 seconds between Ms Anderson and Ms Mahoney. At one stage you and she were on the ground. Meanwhile Ms Ellis and Ms Garner wrestled each other in a standing position. That activity came to an end and
Ms Ellis and you, Ms Garner, assisted Ms Mahoney and Ms Anderson (respectively) off the ground.
9It is apparent from the CCTV footage that you, Ms Garner, tried to separate people, and try to stop any further physical confrontation occurring.
10At this point you asked for your mail and a Bluetooth speaker to be returned to you. Ms Mahoney went inside the house to retrieve those items and a second altercation started, lasting about 20 seconds. During that altercation you both tumbled to the ground in a wrestle with Ms Ellis. Ms Mahoney ran out of the house to intervene.
11It is those two scuffles or wrestles which constitute the two assault offences against both victims.
12After getting off the ground Ms Mahoney and Ms Ellis can be seen giving you, Ms Garner, your Bluetooth speaker and a bundle of mail at which time you both then immediately left.
Interview
13Ms Mahoney made a complaint to police and on 29 June 2022 you both complied with a request to attend Melton police station.
14You both participated in records of interview, acknowledging the incident.
Sentencing Principles
15Aggravated burglary is a very serious offence on the criminal calendar of this State. It attracts a maximum penalty of 25 years' imprisonment.
16Common assault also attracts a term of imprisonment, the maximum of which is five years.
17In relation to the aggravated burglary, you formed an intention to enter the premises forcefully and to assault those within in order to get what you came for. That is reprehensible behaviour.
18People are entitled to feel safe in their home. It is intimidating to have two people enter, at evening time and in a state of aggression.
19The victims here were invited to but declined the opportunity to make victim impact statements. However, I take into account the fact that this type of offence causes fear for victims and creates stress and anxiety about their safety. I take those matters into account.
20In the aftermath of relationship breakdowns tempers can run high and people must be protected from suffering violence in that context. For that reason the sentence imposed must generally deter others, must denounce the behaviour on the part of the community and must be directed at community protection.
Objective Gravity
21However, there is no dispute between the parties that when I assess the objective gravity of this offending it falls at the lowest end of the spectrum of aggravated burglary.
22The factors which lead to that conclusion are as follows –
(a) This was a spontaneous offence, committed when it became apparent to you that the property was not going to be handed over immediately. In those moments you formed your intention to enter and to assault.
(b) The entry was very short lived, being eight seconds.
(c) There were no weapons involved.
23The common law assaults both occurred in the ongoing dispute outside the premises.
24At various times on my assessment of the CCTV footage, you, Ms Garner, are attempting to de-escalate the situation.
25You both left voluntarily once the property was returned.
26In relation to the common law assaults, fortunately there were no significant injuries sustained. The assaults, being wrestling and scuffling, while unpleasant are also in my view at a lower end of seriousness given the broad spectrum of offending which can occur under that label.
Personal Circumstances – Ms Garner
27Turning to you Ms Garner.
28I was assisted by helpful written and oral submission from Mr Lowy on your behalf.
29Your background is outlined in detail in the report of Dr Deacon, psychiatrist.
30In short summary, you are now 26 years old. Your childhood was a happy one with a supportive, loving family. You grew up in Bacchus Marsh with two sisters. You successfully navigated your schooling, completing Year 12.
31You have no prior criminal history of any kind.
32You started work during your Year 12 at Highmark Homes and have remained employed there ever since. You worked your way up through the business from a receptionist position taking multiple roles from site manager to consultant. You are currently the office manager, working six days per week. Such is your relationship with them that you have been able to be open with your employer about this offending.
33You worked while completing a Certificate IV in engineering and construction.
34It appears that your sometime relationship with Ms Mahoney was a difficult one. You describe it in various ways to Dr Deacon as controlling and intrusive. There were issues with intimacy and issues financially. You told Dr Deacon that you avoided going home after work, instead attending the gym. You lost a significant amount of weight. You explained that drug use was an issue of dispute in the relationship.
35At various times you contacted your mother for assistance in response to conflict and aggression in what you describe as emotional abuse. You felt trapped and helpless and on a few occasions slept in your car with your dog.
36There are usually at least two sides to every story, however your mental health was certainly in decline during the period of your relationship. It reached its ultimate low point in December 2021 when you attempted suicide by hanging in your garage. Ms Mahoney cut you down where you were unconscious. You felt too embarrassed to report the suicide attempt to anyone.
37You attended your GP sometime after and you were prescribed antidepressant medication in response to your low mood.
38In May 2022 your GP referred you to a psychologist, Dr Pekic, partly in response to what you were reporting as difficulties with your memory and obviously as a result of your poor mental health state.
39You were initially allocated six sessions under a Mental Health Care Plan. Ultimately, that plan extended to allow for a total of 10 sessions.
40You attended your first session of psychological counselling with Dr Pekic in July 2022, that is after this offending.
41I have now received a letter from Dr Pekic, who reports that in those early sessions, which I note were close in time to this offending, you presented with significant levels of anxiety and moderate depression, as reflected in results from standardised psychometric assessments.
42Positively, Dr Pekic writes that you made significant progress over the course of your treatment, and in particular have improved your coping mechanisms. You engaged in your final session with Dr Pekic in February of this year. I have been informed today at your plea that you have another appointment to see him on 7 October 2023. There is obviously an ongoing relationship with him which is to be encouraged.
43This offending occurred in June 2022, so at that point you had the referral for treatment but had not started psychological counselling as you were on a waiting list. It is apparent that you were therefore in a parlous mental health state at the time of this offending. According to the expert report of Dr Deacon you were deeply traumatised during the period of your relationship. You experienced trauma related symptoms consistent with PTSD including heightened states of anxiety, nightmares and flashbacks. He assesses that your memory problems are likely related to prolonged trauma.
44According to Dr Deacon your intense and aggressive acts during this altercation are best explained through a trauma related lens whereby you felt vulnerable being reminded of your relationship and were triggered into an uncharacteristic response. You have not previously been a person prone to violence or aggression.
45Your counsel submitted that the principal enunciated by the Court of Appeal in R v Verdins[5], specifically limb 1, applies. That is your moral culpability is somewhat reduced or moderated because of the state of your mental health at the time of this offending. Ms Dearman on behalf of the prosecution did not take issue with that submission. I accept your mental health state in the months preceding this event and in the lead up to it does reduce your moral culpability to an extent.
[5] R v Verdins [2007] VSCA 102.
46To your credit you pursued the psychological counselling attending on Dr Pekic from July 2022 up until March 2023. That treatment only ceased due to your positive progress.
47You have had no contact with either of the victims in this matter since this offending. There is an intervention order in place for the protection of Ms Mahoney.
48You are supported by your family. Your mother has been present in court throughout the plea hearing and these proceedings, as was your fiancé and your best friend. You and your fiancé have been together since August 2022 and moved in together in early 2023. That is said to be a positive relationship. You and he are trying for a child. Unfortunately, you recently suffered a miscarriage.
49You have continued in your employment, working six days per week. You continue to progress positively through Highmark Homes.
50You have an interest in hobbies including stand-up paddle boarding, boxing and your pet dog.
51Dr Deacon assesses you as a low risk of any reoffending provided there is no contact with the victim here.
52In my view your prospects of rehabilitation are excellent, in particular given you have taken your own steps toward psychological counselling, at your own expense and over a reasonably long period of time.
53In all of the circumstances your Counsel submitted that a disposition without the recording of a conviction is appropriate here. Specifically, taking into account the subsections of s8 of the Sentencing Act 1991, he noted the nature and gravity of the offending here despite the serious offence is at the lowest end. He referred to your previous good character and to your ongoing prospects of employment which would certainly be negatively affected by the recording of a conviction for such a serious offence.
54Ms Dearman on behalf of the prosecution did not take issue or seek to counter any submissions in relation to whether a conviction is recorded in your case. She very fairly submitted that a Community Correction Order is in range but added that she does not submit that a fine could not achieve the relevant sentencing considerations in all the circumstances.
55In the circumstances I had you assessed for a Community Correction Order with a mental health condition, and adjourned the matter for consideration.
56The assessor’s report indicated that your level of risk of reoffending is such that a supervision condition is not recommended. Further, the assessment in relation to mental health confirmed that, no doubt given your own engagement with and positive progress during treatment, a mental health condition is not recommended. Further, no other program or course of treatment was indicated. Thus, the recommendation of Corrections Victoria was that if a CCO is imposed, only the punitive aspect of an unpaid work condition is deemed appropriate in your circumstances.
57Those findings by the assessor further indicate to me that protection of the community and specific deterrence have little work to do as sentencing considerations in your case and that a sufficiently punitive fine would be the appropriate disposition, taking into account the lower end of the seriousness of this offending and taking into account your ongoing employment commitments.
Personal Circumstances – Ms Anderson
58Turning to you Ms Anderson. Ms Ballard on your behalf delivered a well- considered, well-constructed and eloquent plea. She outlined your history by way of written submissions and it is also contained in the psychological report of clinical psychologist Mr Guy Coffey.
59You are now 31 years old. You are in full-time employment and you were supported by your mother and good friend in court. I received a bundle of character references on your behalf.
60Your formative years are marked by significant trauma and abuse. That is outlined in detail in the report of Mr Coffey. In summary, you grew up in Glenroy the third of three daughters. Your parents separated when you were very young and your mother re-partnered. Your stepfather was violent and abusive, mistreating all three of you girls and emotionally abusing and controlling your mother. Your home was not a safe place. Your mother descended to alcohol addiction to cope and you were told that foster care would result from any complaint about your stepfather.
61From a very young age you began to self-harm, to the point of attempting suicide as a seven-year-old, 10-year-old and again at 14. You received very little support from school or home or any other professional after those events.
62Your mother at one stage left your stepfather with you three girls when you were in your late teens, however returned to him again and lived with him and away from you for an additional three years.
63You and your sister who was 10 months older than you spent a lot of time together to avoid being at home. You and she formed a strong bond throughout the course of your life, spending many times together hanging out in the local community including in abandoned homes when you did not wish to return home.
64Your sister was in the year above you at school, however was kept down and so you also moved through your schooling together. In your 20s you lived together.
65When she was 14 years old your sister came out as gay. That was extremely poorly received by your stepfather who promptly excluded her from the family home. She and her then girlfriend spent some time in a women’s refuge.
66You also identified as gay, that became a struggle which you were forced to keep to yourself.
67You managed to complete Year 10 at school, however your engagement at school was obviously affected by what was happening in your home environment. You also report being bullied at school.
68You attempted a TAFE course as a chef but decided it was not for you. Nonetheless and despite your difficult history you have worked consistently since leaving school. From the time you were 18 until the time you were 28 you worked at Woolworths. You are now employed with a steel company in Laverton working driving a forklift and sorting orders and packing. You are part of a team of 20 people. You have been open with your immediate supervisor about these court proceedings and you are supported by them.
69In 2021 your sister died in tragic circumstances. You and she had been together on the evening of her death and she was drinking heavily. You took wine from her but she badgered you for it. Ultimately you went to bed only to be woken by police who informed you and your family that your sister had been killed on railway tracks. There was an initial inquest into her death, and a second inquest held this year with the Coroner finding death by misadventure. You are not entirely sure whether that is accurate or whether she deliberately suicided.
70Her death is all the more painful to you because it occurred at a place where you and she had spent a lot of time together as children and teens.
71Your Counsel described and I accept that her death was a life-changing experience for you. You and she had been a source of constant support and you had watched her struggle with her mental health.
72At times your own mental health has been acute to the point that you have required hospital admission. At other times you have engaged with some counselling but at this point you have not found the right professional to help you fully deal with that grief response nor with the trauma of your childhood.
73After your sister’s death you describe a period of increased psychological instability which is ongoing. You did not work for nine months and became isolated and self-destructive. You say your grief displayed itself in rage. On a number of occasions since you required acute psychiatric care and you have required medication in the form of Prozac and Seroquel.
74In addition to those stressors, in February 2022 you underwent a hysterectomy as a result of long-term endometriosis. Your ovaries were not removed, however you are confronted with the reality that you will not now bear children. You are required to take pain medication when you are ovulating although you report that your physical health is now reasonably positive.
75Ms Ballard submitted that the principles enunciated by the High Court in Bugmy v R[6] are enlivened in your case, though she accepted yours has not been a kind of multifaceted disadvantage or neglect.
[6] Bugmy v R [2013] HCA 37.
76The more recent case law bears out that Bugmy ought not be too narrowly construed.[7] In my view, in particular the abuse you suffered which resulted in a fractured relationship with your home environment, and significant time out of home, along with the impact on your schooling, and complicated by your sexuality which you knew would draw an additional negative response from your stepfather do enliven those principles. The impact on your mental health was immediate, as demonstrated by your attempts at self-harm, and became chronic. As you rather insightfully told Mr Coffey, those matters ‘cast a shadow’ across your young adulthood and no doubt into the rest of your life. They have left their mark on you and are relevant to my assessment of your moral culpability.
[7] See Sabbatucci v The Queen [2021] VSCA 340; Roosevelt Newton (a pseudonym) v The King (2023) VSCA 22.
77Sensibly, Ms Ballard submitted the amount of moderation is a question of weight. That is correct. In the face of that adversity you have been able to maintain employment and relationships. However, that is to your credit and does not detract from the impact of your early life nor from the more recent added trauma of your sister's death. Ms Dearman on behalf of the prosecution did not make any submission in opposition to those submissions.
78Ms Ballard also submitted that your mental health enlivens the principles of Verdins. Specifically she referred to a portion of Mr Coffey's report where he explains the nexus between your background and your psychological vulnerability and your over-the-top response in the situation here. She submits that your psychological vulnerability is useful in the way it informs your recourse to violence.
79Again, I accept that that is an appropriate submission and that the principles of Verdins are enlivened in your case. They do help to understand and reconcile your behaviour on this occasion. Your poor mental health, that is, goes some way towards moderating your moral culpability.
80Ms Dearman appropriately accepted that Verdins limb 1 is enlivened in that way.
81Your Counsel accepted that in your case there is more treatment work to do in relation to your demonstration of aggression and violence here. She makes that submission acknowledging that you do have a short but relevant prior criminal history. In May 2013 you were dealt with for an offence of robbery and an offence of intentionally cause injury. The circumstances of that offending have some similarities to the offending before me. According to Mr Coffey you are able to see the parallels and to acknowledge the need for some treatment to ensure there is not a repeat of that behaviour.
82You were placed on a Community Correction Order for that offending which you originally breached, however you were given a further opportunity and managed to successfully complete that order through 2015 and 2016.
83That is a concerning prior criminal matter. As far as parity goes it is a relevant consideration. In my view your older age, more active role in the physical altercation during this offending, the fact of your relevant prior criminal history and the lack of active treatment since this offending place you in a different position from your co-offender Ms Garner. This was not disputed by your counsel.
84In all the circumstances she submitted that the appropriate disposition in your case is a Community Correction Order with conviction. The Prosecution appropriately agreed that such a disposition was in range.
85According to Mr Coffey your risk of reoffending without treatment is moderate to low. Your risk of reoffending with treatment is low. I accept that to be the case. In my view your prospects for full rehabilitation are very good provided you undertake some counselling treatment.
86With this in mind, I also had you assessed for a CCO. As with Ms Garner, your low level of risk is such that a supervision condition was deemed inappropriate. However, unsurprisingly as per your self-report to Dr Coffey, it was found that you would benefit from a mental health condition as part of a CCO so as to reduce your likelihood of reoffending through the management of your complex mental health symptoms.
Plea of Guilty
87In relation to you both I take into account that you have pleaded guilty at the earliest available opportunity. That is significant for a number of reasons. First, it has a utilitarian benefit in that it saves the court and the community the cost and time of a criminal trial.
88Secondly, importantly in matters such as this your pleas of guilty have spared the victims from having to come to court and give evidence.
89
I also accept there is a level of regret attached to the plea. In your case,
Ms Anderson, I accept Ms Ballard’s submission that your plea does represent remorse given the comments you have made to Mr Coffey about your shock and regret at your own behaviour.
Current sentencing practices
90Finally, I indicate that I have taken into account current sentencing practices. There are always similarities and differences in both the circumstances of the offending and the personal circumstances of the offender. Aggravated burglary covers a wide spectrum of offending, as does common law assault. Ultimately, I am required to impose a just sentence in all the circumstances before me and that is what I have endeavoured to do.
Sentence – Ms Garner
91Ms Garner, if you could stand please. In the circumstances of your case the sentence I intend to impose is as follows:
92On Charge 1 of aggravated burglary, without conviction, you are fined $1500.
93On Charges 2 and 3 you are required to enter an undertaking to be of good behaviour for a period of two years. That undertaking, in addition to that core condition that you be of good behaviour, will have an additional special condition that you continue to engage in psychological counselling as directed by either your general practitioner or Dr Pekic or his nominee. In other words, if Dr Pekic indicates that you should come back for a period of time every couple of weeks or every month that is what you should do. You are required to follow those directions for that period of two years of the good behaviour bond or undertaking.
94Do you agree to commit to that undertaking with that special condition?
95OFFENDER GARNER: Yes, Your Honour.
96HER HONOUR: All right. If you just have a seat there for a moment and I will have you sign that in just a moment.
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97I also indicate that but for your plea of guilty, so in other words if you have not pleaded guilty, the sentence I would have imposed would have been a community correction order in the vicinity of two years, with a conviction, with mandated supervision, unpaid community work and psychological treatment.
Sentence – Ms Anderson
98Ms Anderson, if you could stand please. I have received a Community Correction Order assessment report which attests to your suitability for such an order and makes a number of recommendations.
99I propose to sentence you as follows: on all three charges I propose to impose an aggregate penalty. I take that step given the three charges are part of a single episode, close in time and closely related to each other.
100Therefore on all three charges you are convicted and sentenced to undertake a Community Correction Order. That order will be of 12 months' duration.
101Attached to that order will be the following conditions in addition to the core conditions. First you are to undertake 100 hours of unpaid community work. Second, you are to undertake assessment and treatment in relation to mental health as directed by Corrections Victoria.
102I further order that up to 50 hours of treatment in relation to your mental health can be offset against the community work component of the order. In other words, the more counselling or mental health treatment you do the less unpaid community work you do, up to 50 hours.
103Before I can impose that order I need your agreement that you will undertake that community correction order. Do you agree to undertake that order?
104OFFENDER ANDERSON: Yes.
105HER HONOUR: Do you understand that if you breach that order, whether it is by any reoffending or by not undertaking those conditions, that you would be brought back before me and liable to be resentenced on this current offending? You do? I can see you are nodding, but just for the sake of the transcript I need you to say yes.
106OFFENDER ANDERSON: Yes.
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107HER HONOUR: But for your plea of guilty the sentence I would have imposed would have been a community correction order of at least three years' duration with supervision, judicial monitoring, a significant unpaid community work component along with a mental health treatment component. Have a seat there, Ms Anderson, and we will have both the undertaking and the community correction order provided to you both.
108We just have an issue. For some reason the dates of birth of both ladies have been automatically entered but they are incorrect so we will just have that corrected. While that is happening are there any issues to raise, counsel?
109MS PHILLIPS: No, Your Honour.
110MR LOWRY: No, Your Honour.
111HER HONOUR: Thank you very much. Ms Garner and Ms Anderson, you will get copies of those documents before you leave. Your signature is your promise that you will comply with those orders that I have made. I am sure you will. I am sure neither of you wish to see the inside of a courtroom ever again so I wish you well in your future journey. Thanks very much Counsel for your assistance.
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