Director of Public Prosecutions v Grosso
[2022] VCC 1034
•1 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02431
Indictment No. M100440673.A
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL GROSSO |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2022 | |
DATE OF SENTENCE: | 1 July 2022 | |
CASE MAY BE CITED AS: | DPP v GROSSO | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1034 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Aggravated Burglary – Lower end of mid-range offending – Statutory complicity – Breaking into victims home with intent to assault – Early plea of guilty – Schizophrenia – Drug abuse - Substantial prior criminal history – Social disadvantage during childhood - Verdins principle 5 engaged – Problematic prospects for rehabilitation - COVID-19 mitigating factors present
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:Hogarth v The Queen (2012) 37 VR 658 – DPP v Meyers (2014) 44 VR 486 – R v Verdins (2007) 16 VR 269 – Marrah v The Queen [2014] VSCA 119 – Boulton v The Queen (2014) 46 VR 308
Sentence: 18 months’ imprisonment – 3 year Community Correction Order with 500 hours unpaid community work and program and treatment conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms A Sharpley | Slades and Parsons Criminal Lawyers |
HIS HONOUR:
1Michael Grosso, you have pleaded guilty to an indictment containing one charge of aggravated burglary.[1] The maximum penalty for this offence is 25 years’ imprisonment.
[1] Contrary to Crimes Act 1958 (‘CA’) s 77.
The Facts
2The prosecution filed a summary of prosecution opening for plea dated 15 June 2022,[2] which I am told by your counsel I can treat as a statement of agreed facts.
[2] Exhibit (‘Ex’) P1.
Overview
3On 29 January 2021, a person entered as a trespasser, a house in Foley Avenue, Preston (‘the premises’) with intent to assault a person therein, knowing or being reckless that a person was present in the house at the time that they entered the house.
4The Director conceded on the plea she cannot prove you were the actual intruder into the house. However, by your plea to the charge you accept you were involved in the commission of the offence in one or more of the circumstances set out in Crimes Act 1958 s 323.
Background
5At the time of committing the offence, you were 28 years of age and resided at a unit in Sydney Road, Coburg. You are presently aged 29.
6The victims, Julie Lister and her two children resided at the premises where the offence was committed and were present in the house when the offence occurred. Ms Lister’s partner, Kris Carpenter, was also present.
7Ms Lister knew you because of an incident which occurred some years earlier.
8Ms Lister’s daughter, Ms Walsh, also knew you through her awareness of the prior incident involving her mother and she had met you also through a friend, Ms West. You were in a relationship with Ms West and Ms Walsh had seen you at Ms West’s house.
Events leading up to the offence
9On or before 28 January 2021, Ms Lister became aware of Ms West’s relationship with you while using Facebook. She posted a Facebook message advising Ms West to be careful of you.
10On 29 January 2021, Ms Lister received two messages over Facebook from a person whom she believed is you. They read, ‘oi you know who I am’ and ‘You really want to start dramas for yourself by saying what you did on Facebook’.
The offence
11On 29 January 2021, a witness was at her home in Preston and saw a grey Mazda 3 with Queensland registration plates pull into her driveway.
12She saw three or four people get out of the car and walk across the road towards the premises, while the car engine was left running.
13At approximately 3:00pm, Ms Walsh heard what she described as ‘aggressive’ banging at the front door of her house. Before answering the door, she intended to place her dogs in her bedroom so they couldn’t escape. However, she saw Mr Carpenter come out of Ms Lister’s room and lock the wooden door at the front of the house. Mr Carpenter told Ms Walsh to not to open the door.
14Ms Walsh heard a voice she recognised as yours calling her mother’s name, ‘Julie’.
15At the time, Ms Lister was home having a nap. She was awoken by Mr Carpenter who came into the room and told her to get up, that people were at the door. Ms Lister got up and was in the hallway when she heard banging on the front door. She returned to the bedroom and called 000. Mr Carpenter was calling the children to come to Ms Lister’s bedroom.
16Ms Walsh went to her own room to lock the window and then went back into the hallway. As she walked back into the hallway, she heard and saw the side metal gate, which was always locked, ‘fly open fast’ and then swing back and forth.
17Ms Walsh then saw a man standing outside the kitchen window. They made eye contact. As she was standing in the hallway, she saw the man pull the flyscreen from the west-facing kitchen window. He was still calling for her mother.
18Ms Walsh then went into Ms Lister’s bedroom with the rest of the occupants of the house and the door was barricaded shut. Ms Lister and Mr Carpenter pushed a cabinet against the door to stop the intruder from gaining entry.
19Whilst they were in the bedroom, they could hear running and footsteps and a male voice calling Ms Lister’s name, ‘Julie’. She also heard the next bedroom door being opened and banging on the door of the bedroom they were in.
20Shortly after this, the household members left the bedroom to discover the intruder had gone.
Police attendance and investigation
21Police arrived a short time later at about 3:10pm and a crime scene was established. They unsuccessfully searched the area for the offenders.
22Investigators have been unable to identify any of the other offenders for this incident.
Arrest
23You were arrested on 1 March 2021.
24On 2 March 2021, Senior Constable Owen and Detective Senior Constable Davies interviewed you at the Heidelberg Police Station where you denied all allegations regarding the crime. You said:
(a) You did not know about the grey Mazda 3 seen by the neighbour but you had probably been in a grey Mazda 3 that year.
(b) You had never met Ms Walsh in your life; you had never seen her; you did not remember meeting her.
(c) You maybe knew the name ‘Julie Lister’. You refused to explain further saying ‘I’ve got no issues’.
(d) It wasn’t you who committed the offence.
(e) Taryn West was your ex-girlfriend
(f) ‘They were trying to set [you] up …. [You] had issues with this family for a while.’
(g) When informed about CCTV footage showing you in the Mazda 3 at a service station on 27 January 2017, you said you had borrowed the vehicle from a friend.
Victim Impact
25The victims did not prepare victim impact statements (‘VIS’). Nonetheless, in the absence of a VIS a sentencing judge can draw reasonable inferences from the known facts regarding the likely effect of the crime on any victim of it.[3]
[3] R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Dowlan [1998] 1 VR 123, 139 (Charles JA, Phillips CJ and Nathan AJA agreeing); R v Rankin [2001] VSCA 158 [7]–[10] (Winneke P, Vincent JA and O'Bryan AJA agreeing); Stalio v The Queen (2012) A Crim R 261, 281 [69]–[70] (Neave, Osborne JJA and King AJA).
26Undoubtedly, the victims would have suffered considerable distress and anxiety as a result of the intruder’s behaviour for which you are criminally liable. Ms Lister, her children and Mr Carpenter each had a right to feel safe in their home and the incident would have been a terrifying experience for them all.
Offence Seriousness
27Aggravated burglary is a very serious criminal offence as indicated by the 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 Victorian community, views this offence.
28In the Victorian Court of Appeal case of Hogarth v The Queen,[4] 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’[5] and a particularly ‘egregious form of aggravated burglary’.[6]
[4] (2012) 37 VR 658.
[5] Ibid 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[6] Ibid 660 [6].
29I accept there is insufficient evidence before me to establish you were the actual intruder who entered the victims’ home. However, a concerning aspect of your offending is that it appears to have been instigated by you, intending someone to confront or use violence against Ms Lister in her home in retribution for the Facebook messages she made regarding you. At the plea hearing, the prosecution submitted there was the potential for an escalation of events resulting in further serious offending.
30In DPP v Meyers[7] (‘Meyers’) the Court of Appeal outlined a number of relevant considerations that apply in determining the assessment of the relative seriousness of the offence. Those matters include the offender’s intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened beforehand.[8]
[7] (2014) 44 VR 486.
[8] Ibid 498 [47]–[49] (Maxwell P, Redlich and Osborne JJA).
31Your plea to the indictment acknowledges you intended someone at the time of their entry intended to commit an assault on a person inside their home. The presence of children in the home at the time of the offence is an aggravating circumstance, as is the fact you were in the company of two or three others. Moreover, entry to the home was forced, with Ms Walsh witnessing the intruder pulling the flyscreen off the window and the locked side gate ‘fly open’.
32In mitigation, your counsel submitted that no weapon was used during the commission of the offence and that once inside the house, the intruder banged on doors, called out the name of one victim and then left the premises. I accept this is the case and there was no actual physical violence inflicted on the victims. The offence occurred in daylight hours during the early afternoon.
33All things considered I assess this to be low mid-range offending.
Personal Circumstances
34You were assessed on 5 May 2022 by Gina Cidoni, a psychologist engaged by your legal representatives. Ms Cidoni prepared a ‘Psychological Assessment Report’, dated 10 May 2022, which was tendered at the plea by your counsel.[9] Your personal history is summarised in the report.
[9] Ex D2.
35You were born in Melbourne in January 1993 and are currently 29 years of age. You are the eldest child in a sibship of three.
36When you were an infant, your parents relocated the family to Italy. Your family lived in Italy until you were six years of age. During that time, you were exposed to family violence perpetrated by your father. Your mother fled the country with you and your younger brother as a result of this violence.
37Your mother confirmed this to Ms Cidoni and stated she felt the separation from your father had a big impact on you. She reported you were often exposed to family violence and your father’s inappropriate behaviour.
38You told Ms Cidoni, you often saw your father beat your mother and, while this was occurring, your father received protection because of his job as a police officer. You told of your family’s traumatic escape from Italy, where police tried to intervene at the airport, resulting in you and your mother leaving all of your possessions behind.
39You described your mother as excessively punitive in the household and your environment growing up as being cold and uncaring.
40You displayed early behavioural issues and Child Protection became involved when you were about 13 years old. Your mother contacted the department because of concerns regarding your behaviour. You and your younger brother were placed in foster care and then residential care units. You described to Ms Cidoni having limited contact with your mother throughout your teenage years.
41Following your entry into the child protection system, you commenced using drugs and disengaged from education. You began engaging in criminal activity soon after and, between the ages of 16 and 18, you spent two periods of time in youth detention.
42You reported recurring homelessness which continued between youth detention and terms of imprisonment. You stayed with your mother upon release from prison, but this ultimately broke down as a result of constant arguing.
43Your mother resides in Ascot Vale and you remain in contact with her. Your father lives in Italy. You told Ms Cidoni you visited your father in Italy when aged 16, but that you have no ongoing, meaningful relationship with him. Your brother lives in Coburg with his partner, you are not close and you believe he also has a drug problem.
44You told Ms Cidoni you have had relationships in the past. Your first relationship was brief and broke down owing to your drug use. Your second relationship lasted one or two years. Your drug use again became a barrier and the relationship ultimately fell apart.
Education and employment history
45You attended preschool while living in Italy. Upon your return to Australia you could not speak English. As a result, you were bullied which caused difficulties in your primary schooling. Your mother reported to Ms Cidoni that you achieved well academically as a child.
46You attended three secondary schools, Essendon Grammar School, Brunswick Secondary College and Ivanhoe Grammar School. You were expelled in Year 10 after fighting with another student because of bullying. You did not undergo further studies.
47You have limited employment history. When you were aged 20, you obtained your first job as a concreter and were employed for nine months. You then worked with a landscaper for ten months prior to your incarceration in 2020. You are currently unemployed.
Substance abuse
48You disclosed a history of drug abuse to Ms Cidoni, however she noted that your account, to some extent, contradicted what was disclosed in other documents she was provided with for the purposes of the assessment.
49You told Ms Cidoni you began smoking cannabis at age 13. At age 16, you commenced using ICE and heroin. You were using 1.7 grams of ICE daily from age 20. At that time you also began daily use of GHB. You told Ms Cidoni you took 100mls of GHB daily between the ages of 25 and 28. She noted this could be a lethal dose. You would use a 5ml plunge which you would take 8-10 times a day along with a ball of ICE and some heroin. You reported experiencing many drug overdoses.
Physical health
50So far as your physical health is concerned, in 2015 you were diagnosed with Crohn’s disease and you underwent a bowel resection. You told Ms Cidoni you were in a serious motor vehicle accident on 6 October 2017, where you sustained several injuries. You discharged yourself from hospital on 10 October 2017 but returned on 14 October 2017 owing to severe pain. Clinical notes within your Justice Health records show you suffer from Hepatitis B and terminal ileitis, and you have pellets of shot in your abdominal wall.
51For the past month or so, you have been suffering from daily headaches and what was described in your medical notes as ‘blinding headaches behind the eyes’, nausea lasting hours and fatigue. This seems to stem from you receiving a double dose of your anti-psychotic medication, olanzapine. The possible effect of this overdose on your heart caused you great concern; however, ECGs performed on you have all been normal. You are medicated with an anti-migraine medication, imigran, and an analgesic and anti-inflammatory medication, brufen.[10]
[10] See Justice Health, Clinical Notes, timed 10 June 2022 at 12:26pm (Ex D9).
52You have also suffered COVID-19 infection while in custody but you appear to have fully recovered.
53I accept your medical conditions, particularly Crohn’s disease, will make imprisonment somewhat more burdensome for you than a prisoner of normal health.
Mental health
54So far as your mental health is concerned, notes from the Royal Children’s Hospital in 2018 indicate a diagnosis of conduct disorder, oppositional defiant disorder, anxiety and personality disorder.
55Ms Cidoni was provided the ‘Confidential Psychological Report’ dated 31 July 2020 prepared by Ms Kerrin Danswan, which was tendered by your counsel at the plea hearing.[11] In her assessment, Ms Danswan administered the Depression Anxiety and Stress Scale test (DASS-21). Your results indicated extremely severe depression, anxiety and stress levels. Ms Danswan opined you met the diagnostic criteria for Substance Induced Psychotic Disorder and Stimulant Disorder and that your psychotic symptoms were the result of long-standing methylamphetamine use rather than schizophrenia. She considered your risk of reoffending was high.
[11] Ex D3.
56In 2021, while in custody, you were diagnosed with schizophrenia. You received treatment from Dr Asiri Rodrigo of Forensicare from August to November 2021. Dr Rodrigo indicated you presented with second person auditory hallucinations, persecutory delusions, anxiety, poor sense of self-worth, slow processing speed and poor memory. Dr Rodrigo opined these symptoms could be explained by your schizophrenia diagnosis and that this diagnosis would likely have a functional impact.
57In a letter from ‘Errin’, a senior occupational therapist with Forensicare, dated 16 May 2022,[12] she confirms you have been a client since 31 August 2021 and you have received support for your mental health. You have been engaging in regular sessions with clinicians from the Mobile Forensic Mental Health Service whilst you have been in custody.
[12] Ex D8.
58Ms Cidoni abandoned cognitive testing during your assessment owing to you being notably sedated and unable to follow test instructions.
59However, she administered the Symptom Checklist-90-R (SCL-90-R) and the Psychiatric Diagnostic Symptom Questionnaire (PDSQ) tests and opined the results should be interpreted with caution as a result of your presentation.
60Your results indicated a schizoid trend that reflected situational distress, avoidance of reality and self and other alienation. You experience feelings of inhibition and regression. Paranoia was present, with difficulty trusting others, some persecutory ideas, suspiciousness and the belief that people will take advantage of you if you allow them. You displayed difficulty in concentration and poor judgment skills.
61A hypomanic trend indicated you expend large amounts of energy with little positive gain. Ms Cidoni reported you experience bursts of overactivity but are not necessarily constructive and that you can be emotional labile and agitated. Anti-social traits and low ego strength were also observed.
62Ms Cidoni noted that in the documents provided to her, you were diagnosed with conduct disorder and oppositional defiant disorder in youth, a drug-induced psychosis in 2020 and schizophrenia in 2021. She also noted the concerns previously held regarding your cerebral function, but that a neuropsychological assessment in March 2022 indicated it was unlikely you had an acquired brain injury.
63Ms Cidoni opined your presentation during the assessment was consistent with the experience of a psychotic disorder that is contained with medication. She noted there were signs of disorganised thinking and that you reported hearing faint voices, however your auditory hallucinations were subdued.
64Ms Cidoni noted the difficulty in distinguishing between substance-induced psychosis, primary psychotic illnesses and psychotic illnesses with comorbid substance abuse. Moreover, she acknowledged you had been using large amounts of illicit substances before you were remanded.
65The DSM-5 distinguishes between schizophrenia and drug-induced psychosis citing the main difference being the length of the psychotic episode, and the implication that drug use does not cause schizophrenia, but that it can trigger schizophrenic episodes in people who are already susceptible to the mental illness.
66According to Ms Cidoni, your results indicated the presence of a contained psychotic disorder. Given that drug withdrawal had taken place more than 14 months prior to the assessment, she found it difficult to ascribe your symptoms to the continuing effects of substance abuse or withdrawal. She opined, you presented with symptoms of schizophrenia including paranoia, alienation, and inhabitation. She also posited, you presented with symptoms of mania and cluster B personality traits that are characterised by dramatic, overly emotional or unpredictable thinking or behaviour.
67Ms Cidoni opined, that collectively your symptoms would contribute significantly to poor coping, disturbing thoughts, and mental and physical distress and that they impact the way you think, feel and behave. Your symptoms are linked to low efficacy with problem-solving, your day to day thinking and functional struggles. In Ms Cidoni’s opinion, the source of these symptoms is likely a consequence of your aversive family experiences and negative exposures during your childhood.
68Ms Cidoni recommended the following treatment: psychological interventions that focus on your maladjustment, personality functioning and eventually your ability to cope with stressors, psychiatric treatment and regular monitoring of your psychosis and lastly, treatment for substance abuse to encourage and help to achieve abstinence.
69I accept Verdins principle 5[13] is engaged in your case to some extent.
[13] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Prior Criminal History
70You have a substantial criminal history dating back to 1 June 2011 where you were sentenced in the Melbourne Children’s Court to 1 year and 4 months’ detention in a Youth Justice Centre for armed robbery, attempted armed robbery, unlawful assault and assault in company.
71Since then you have committed a large number of dishonesty and property offences, including attempted burglary, five charges of theft, six charges of theft of a motor vehicle, obtain property by deception, deal with property suspected of being proceeds of crime, handle stolen goods, without lawful excuse enter private place, intentionally damage property, wilful damage and criminal damage.
72Additionally, you have been convicted of a number of offences against the person, including reckless conduct endanger life, reckless conduct endanger serious injury, recklessly cause injury, two further charges of unlawful assault and stalking.
73The remainder of your prior criminal history includes, drug offences, prohibited person possess firearm, possession of controlled weapon, offences against the Bail Act 1977 and a number of offences involving disobedience of court orders, including breaching suspended sentences, contravening community correction orders (‘CCO’), contravening family violence intervention orders and a large number of driving offences.
74In addition to the detention order previously referred to, you have received two suspended sentences of imprisonment – one of six months in April 2013, the other of four months in May 2013 – both of which you breached. In each case, no order was made on the original offences. You received a CCO on the breaching offences. However, when in April 2015 you breached the CCO and the two suspended sentences again by further offending, you were ordered to serve eight months’ imprisonment.
75Since then, in November 2016 you were sentenced to a total effective sentence of 187 days’ imprisonment on a raft of offences including breaching yet another CCO. Then, in May 2017 you received an aggregate sentence of 203 days’ imprisonment. Further, in February 2019 you were sentenced to a total effective sentence of 1 year and 3 months’ imprisonment with a non-parole period of nine months, which sentence was effectively reimposed on appeal to this Court. Finally, in August 2020, you received an aggregate sentence of nine months’ imprisonment and a 12 month CCO with 100 hours unpaid community work and treatment and rehabilitation conditions.
76You were on this CCO at the time of committing the present offence. Breach proceedings in respect of this CCO are currently pending.
77There are also a number of outstanding summary matters related to the current offending and which were remitted to the Heidelberg Magistrates’ Court to be dealt with. These alleged offences include two charges of theft of a motor vehicle, two charges of drive whilst disqualified, two charges of commit indictable offence whilst on bail and one charge of handle stolen goods. Clearly, you are not being punished by me for these alleged offences and they are not relevant for present purposes.
78Clearly, given your prior criminal history, specific deterrence and protection of the community are significant sentencing considerations in your case.
79Following the sentence indication hearing which proceeded before me on 20 May 2022, I ordered the preparation of a pre-sentence report as to your suitability for another CCO.[14] I received a report dated 3 June 2022,[15] to which I have had regard.
[14] Pursuant to Sentencing Act 1991 s 8A.
[15] Ex C1.
80In the report, Ms Mikaela Morphett assessed you as having a high risk of reoffending according to the Level of Service Risk Assessment Tool.
81Ms Morphett assessed you as being unsuitable for a CCO. Your prior criminal history and cancellation of three out of the four CCO’s you have previously been placed on were given as the primary reasons for your unsuitability. Ms Morphett also highlighted your history of violent offending and minimisation of drug use as matters of concern.
82Supervision, treatment and rehabilitation for drug use, mental health assessment and treatment, offending behaviour programs, and unpaid community work conditions were recommended, should I choose to impose a CCO in your case, despite her recommendation to the contrary.
Mitigating Circumstances
83This matter resolved following a case conference before me on 22 April 2022 and a sentence indication hearing which was conducted by me on 20 May 2022. You pleaded guilty to the present indictment on 1 June 2022. Given the significant change in how the prosecution now puts its case against you, I consider you pleaded guilty at the earliest forensically reasonable opportunity.[16]
[16] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
84Your plea has utilitarian benefit, particularly in the COVID-19 environment,[17] and you have saved the victims the trauma of giving evidence in court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[17] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
85While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[18]
[18] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
86I accept you will experience a greater level of custodial hardship as a result of COVID-19 restrictions. COVID-19 is relevant to sentence because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[19]
[19] The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ).
(b) As I earlier observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[20]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[21]
(d) The pandemic can impact on visits, work and educational opportunities depending on the number of cases of COVID-19 in the community at any given time.[22]
[20] See above [83].
[21] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
[22] Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
87As noted earlier, your early years were marked by exposure to extreme family violence, resulting in your mother fleeing Italy suddenly and without possessions in order to escape. In your early teenage years, you were removed from your home and entered the child protection system. Your teenage years were marked by disengagement with education, substance use, and negative peer influences.
88I accept you background of social disadvantage during childhood is a mitigating circumstance in your case. In Marrah v The Queen[23] the Victorian Court of Appeal said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[24]
[23] [2014] VSCA 119.
[24] Ibid [16] (Redlich and Tate JJA) (citations omitted) (emphasis original); Dhal v The Queen [2020] VSCA 90 [77] (Croucher AJA, Emerton JA agreeing).
89Material was placed before me regarding the efforts you have made towards your rehabilitation whilst remanded in custody for this offence. You have successfully completed a three-hour program on alcohol, drug dependence and anger and a six hour ‘Ice Effects Program’.[25] Urine drug screens conducted whilst you have been on remand covering the period 17 May 2021 to 26 November 2021 detected only your prescribed medication.[26]
[25] Exs D4 and D5.
[26] Ex D6.
90I have had regard to a letter written by your mother dated 13 May 2022.[27] She considers you are gaining insight into the causes of your drug addiction and offending behaviour and you manifest a desire to rid yourself of this scourge and lead a law abiding and useful life in the future. She is prepared to support you in this ambition and to afford you ‘one last chance’. She will allow you to reside with her in her home so long as you remain drug free. She will also support you to eventually live independently.
[27] Ex D7.
91I access your prospects of rehabilitation as being somewhat problematic. As your counsel correctly observed, on your release from custody much will depend on your ability to remain abstinent from illicit drug use, comply with your psychotropic medication regime and your capacity to disassociate from your former antisocial peers.
Application of Sentencing Principles
92I have had regard to current sentencing practice in relation to the charge of aggravated burglary as informed by the decisions of the High Court of Australia in R v Kilic[28] and DPP (Vic) v Dalgliesh (a Pseudonym)[29] and the Victorian Court of Appeal decision in DPP v Zhuang.[30]
[28] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[29] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[30] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA).
93While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[31]
[31] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
94Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of aggravated burglary and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
95The 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 offence, your culpability for it, the effect of your offence on the victims and your personal circumstances.
96I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
97Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for this offence. Moreover, I consider real weight needs be given to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and the risk of you reoffending. As I said earlier, I assess your prospects for rehabilitation as being problematic
98The parsimony principle requires I not impose a sentence that involves your confinement unless I consider the purposes for which this sentence is imposed cannot be achieved by a CCO to which one or more of certain specified conditions are attached.[32]
[32] See SA s 5(4C).
99As the Victoria Court of Appeal observed in Boulton v The Queen:[33]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[34]
[33] (2014) 46 VR 308.
[34] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
100After balancing all relevant sentencing considerations in your case, I consider you may be turning a corner in your life and that a relatively lenient sentence imposed at this stage may lead to your eventual reformation.[35]
[35] See R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ, White J agreeing) approved in Markovic v The Queen (2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
Mr Grosso
On the charge of aggravated burglary you are convicted and sentenced to 18 months’ imprisonment together with a community correction order for three years commencing on your release from custody with the following program and treatment conditions:
Under SA s 48C you are to perform 500 hours of unpaid community work over three years.
Under SA s 48CA I determine up to 200 hours satisfactorily completed under the treatment and rehabilitation conditions of the order are to be counted as hours of unpaid community work.
Under SA s 48D(3)(a) assessment and treatment (including testing) for drug abuse or dependency.
Under SA s 48D(3)(c) assessment and treatment (including testing) at a residential facility for (ii) withdrawal from or rehabilitation for drug abuse or dependency.
Under SA s 48D(3)(e) mental health assessment and treatment.
Under SA s 48D(3)(f) any program that addresses factors related to your offending behaviour.
Under SA s 48D(3)(f) you are to compete a Men’s Behaviour Change Program
Under SA s 48E you be under supervision for three years.
Under SA s 48G you are to reside with your mother, Rosa Benincasa, at her home in Ascot Vale for a period of six months from your release from custody.
Under SA s 48K judicial monitoring. A judicial monitoring hearing will be conducted on Friday, 16 December 2022 at 9.30am.
I declare that pre-sentence detention in your case is 487 days (not including this day) and I direct that declaration be entered into the records of the Court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to four years’ imprisonment with a minimum non-parole period of three years.
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