Director of Public Prosecutions v Gruber
[2022] VCC 599
•7 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02206
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE GRUBER |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2022 | |
DATE OF SENTENCE: | 7 March 2022 | |
CASE MAY BE CITED AS: | DPP v Gruber | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 599 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Plea of guilty – recklessly causing injury, aggravated burglary and recklessly causing serious injury – offending against former domestic partner in the presence of daughter – offending involved attending at the victims home and assaulting her to the head with a mattock handle and repeatedly stabbing her with a serrated knife - significant physical and psychological injuries suffered by victim – general deterrence, denunciation and community protection paramount sentencing considerations – need for sentence to denounce violence against former partners driven by jealousy – lack of prior criminal history – application of Verdins – reasonably good prospects of rehabilitation subject to offence specific counselling.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:DPP v. Meyers [2014] VSCA 314; Hill v. The Queen [2020] VSCA 220; Tan v. The Queen [2019] VSCA 226; Newton v. The Queen [2021] VSCA 207; R v. Verdins (2007) 16 VR 269
Sentence: Six years, six months' imprisonment with a non-parole period of three years, nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic (plea and sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Mr N. Goodenough (plea and sentence) | Sally Wilson Legal |
HER HONOUR:
1Shane Gruber, you have pleaded guilty to the following three offences arising out of two separate incidents:
(a) recklessly causing injury contrary to s18 of the Crimes Act 1958 ('the Act') (charge 1);
(b) aggravated burglary contrary to s77 of the Act (charge 2); and
(c) recklessly causing serious injury contrary to s17 of the Act (charge 3).
2Charge 1 arises from an incident on 10 October 2007. Charges 2 and 3 arise from an incident on 10 June 2021.
3
The victim of your offending is your former wife, Karina McCauley[1], to whom you had been married for 20 years and in a relationship with for approximately
[1] A pseudonym.
30 years. Together you have two daughters: Madeline[2], who was born in 2004
[2] A pseudonym.
and Jamila[3], who was born in 2006. Ms McCauley separated from you in
[3] A pseudonym.
January 2021 and was living in her own rental property in Wodonga with her daughters at the time of the second incident.
4
On 10 June 2021 you armed yourself with weapons – a mattock handle and a
15 centimetre serrated knife – and attended Ms McCauley’s property. You smashed the glass panel of the front door and repeatedly struck the door, ultimately breaking it in order to force entry into her home. Ms McCauley was in a nearby bedroom asleep with Matilda, your eldest daughter. Once inside, you attacked Ms McCauley by hitting her to the head with the mattock handle and stabbing her several times with sufficient force to bend the blade of the knife.
5This shocking event was witnessed by your daughter, who was 15 years old at the time. This case illustrates the profound and devastating harm caused by violent attacks perpetrated against former domestic partners – harm that extends well beyond the immediate victim of the violence.
6You were 50 years old at the time of the offending on 10 June 2021. You have no prior criminal history.
Circumstances of the offending
7The circumstances of your offending are detailed in the Amended Summary of Prosecution Opening dated 24 February 2022 and is the agreed basis upon which you are to be sentenced. A summary of your offending is as follows:
8On 10 October 2007 you and Ms McCauley were in the kitchen of the family home in Wodonga when you became angry over a $250 second-hand cubby house purchased by Ms McCauley for the children. Ms McCauley’s 14-year-old brother was present in the kitchen. You grabbed a coffee mug from the kitchen bench, screamed 'fuck!' and threw the coffee mug as hard as you could at Ms McCauley’s legs. The mug struck her in the ankle, causing her to fall to the ground. Her young brother, feeling scared, turned to run away but Ms McCauley asked him to stay. He later told his mother what happened.
9
Ms McCauley felt immediate pain to her ankle. The following day she attended at
Albury Base Hospital, telling staff she had been accidentally hit by a cricket bat. An X-ray of her ankle revealed an un-displaced fracture of the distal fibula, with soft tissue swelling of the ankle joint. She was placed in a cast for six weeks, requiring the use of crutches. These are the circumstances that are the subject of charge 1 – recklessly causing injury. The maximum penalty for this offence is five years' imprisonment.
10
You and Ms McCauley separated in mid-January 2021, at which point she
moved out of the family home and into a nearby rental property. Your
two daughters spent the majority of time with their mother but would visit you
twice a week. Ms McCauley’s rental property was approximately 950 metres from the former family home where you resided. There was no understanding that you could attend or let yourself into Ms McCauley’s property.
11
In February 2021 Ms McCauley instructed solicitors to act on her behalf in
settlement negotiations in respect of your jointly-owned property and assets. Her lawyers sent you a letter in May 2021 seeking full disclosure of your assets. On
8 June 2021 you sent a text message to your brother stating, ‘I got a letter from Karina’s solicitor, she is going full pineapple, they want detail of rentals, term deposits, shares, super, savings, car value and yes even the motorbike value, gold digging slut!!!’
12
In April 2021 Ms McCauley sent you a text message telling you she had commenced a new relationship. You replied, asking if she had been seeing her new boyfriend behind your back. You also became aware this male had updated his Facebook account on 7 June 2021 to state he was now in a relationship with
Ms McCauley.
13In the days that followed Ms McCauley sent you a text message asking that the sum of $2,500 be taken from any settlement to pay for a dental procedure. You responded, saying, ‘Couldn't your new man lend it to you considering how fast you replaced me, he is the man of the house now’, and told her to get a real job. Around this time your youngest daughter visited your house and saw that your framed wedding photo had been smashed and the picture cut into pieces.
14
On 9 June 2021 at 10.44 pm you sent Ms McCauley a sarcastic text message stating, ‘How's the Facebook posts going darls, it's a like from me’. Ms McCauley
responded, saying, 'I am glad you approve'.
15You then exchanged a few more text messages about depositing the sum of $2,500 into her account the next day. At 11.31 pm Ms McCauley messaged thanking you and then went to bed. She fell asleep with her daughter, Matilda, in the master bedroom, which was immediately to the left of the front door of her property.
16
At approximately 12.15 am you arrived at Ms McCauley’s property, having first taken a mattock handle and the serrated knife from your house. CCTV footage
captures you walking to her house carrying a black bag with the mattock handle
protruding from it. The walk to her house takes approximately 12 minutes.
17
When you arrived you used the mattock handle to hit the horizontal glass panel on the front door, smashing the glass. You then hit the door several times, breaking the handle and door frame. The noise of the banging woke
several neighbours.
18
You then forced the door open and entered the house, armed with the
mattock handle and knife. You began striking Ms McCauley with these weapons from the moment you entered her bedroom. Ms McCauley had begun to get out of bed when she heard the noise caused by your entry, but then felt the first hit to her body. Ms McCauley only saw a shadow in the room but recognised your voice. She could only put her hands up to her head to defend herself. She could not tell how many times you hit her, but later told police she could feel the 'anger and hurt' you were putting into every blow.
19
When you hit Ms McCauley directly to her head with the mattock handle she felt cold and 'fuzzy' and could not see properly. She could see a shadow over
one eye.
20You then stabbed her several times with the knife. The strikes were of such force that the blade of the serrated knife bent significantly. Ms McCauley was bleeding heavily into the pillow and screaming at you to stop. Your daughter Matilda awoke to see you continuously hitting her mother with the mattock handle while she lay on the side of the bed. Your daughter later described your conduct to police, saying you hit her mother 'heaps of times' and that 'it was so hard'. Matilda yelled at you to stop but you did not desist. Bravely, she then pushed you in the back and yelled at you to leave.
21You then dropped the knife and mattock handle in the bedroom and ran from the house. Matilda turned on the lights and describes seeing 'blood everywhere'. She tried to lock the door, but the door was broken. She then called 000 and the police and an ambulance arrived shortly thereafter. Neighbours described the screams they heard as 'blood curdling' and also called police.
22Matilda also called her aunt, who arrived to see her sister lying on the bed with a lot of blood in her hair and on the bedding. Ms McCauley’s mother also arrived by the time three ambulance officers were working on her daughter. She told Ms McCauley, 'I'm here, Mum's here', but when Ms McCauley began to convulse her mother became so distressed she had to leave.
23Your youngest daughter, Jamila, arrived to see her mother being taken from the house and onto a stretcher.
24
Ms McCauley was transported to Albury Hospital and was assessed in the
Emergency Department. She suffered significant injuries as a result of the attack, including an open wound to her scalp, described in the hospital records as being of 'full thickness with the skull on view', requiring stapling; a mild head injury with symptoms consistent with concussion; a mildly displaced mid-shaft left clavicle fracture with an overlying four centimetre abrasion to the area; fractures to the left second, third and fifth ribs; and a two centimetre shoulder laceration that required sutures. Ms McCauley also sustained multiple soft tissue injuries, including bruising and lacerations to the temple, jaw, fingers and palms.
25
Ms McCauley was medically assessed as having sustained blunt force trauma to her scalp, rib fractures and soft tissue injuries, in addition to sharp force trauma resulting in a back wound and wounds to her hands and fingers. There were
multiple injuries to her body denoting at least seven impacts to her ribs, clavicle, back, temple, jaw, scalp and hands.
26
Ms McCauley was admitted to hospital for pain management and observation and was discharged on 15 June 2021. Since that date she has attended
several reviews with Dr Ansari of the Alpha Medical Centre in Wodonga.
Ms McCauley has been diagnosed with post-traumatic stress disorder requiring ongoing psychological therapy. In September 2021 Ms McCauley reported worsening memory, poor sleep and panic attacks, and was referred for an
MRI scan and a neuropsychological assessment.
Investigation and arrest
27Following the incident on 10 June 2021 the police attended at your house, but you were not there. You were arrested at your home at 6 am later that day, where you were found sitting in the lounge, drinking red wine and wearing pyjama pants. The police located the clothing you had worn in the washing machine and photographed grazes to your hands. Your telephone was also seized and reviewed.
28You were interviewed by police on 10 June 2021 and made certain admissions in relation to the incident in 2007, but otherwise denied the offending. You agreed to having 'a bit of an argument' and throwing 'a small coffee mug' in 2007. You said you had thrown it 'just in the general direction' of Ms McCauley, 'probably towards the wall', but that 'it actually hit her'. You agreed Ms McCauley received a fracture.
29
You denied any offending on 10 June 2021. You said you had been home alone the whole night. You said you had drunk a bottle and a half of red wine, which was unusual for you, and that you had watched movies on Netflix. When shown photos of the mattock handle you said you did not recognise it, describing it as
'a baseball bat' or a 'handle off a tool' of some kind. When shown photos of the knife, you said you had 'never seen one that is sort of cut out like that'. You said you had 'no idea' and no comment when shown photographs of the injuries sustained by Ms McCauley. You agreed it had not been a 'nice feeling' when you were told of Facebook posts of Ms McCauley with a new boyfriend.
Offence gravity and impact on the victims
30I turn now to discuss the nature and gravity of your offending.
31
Without doubt this was extremely serious offending. The offences of
aggravated burglary and recklessly causing serious injury are both objectively serious crimes, as gauged by the maximum penalties of 25 years and
15 years' imprisonment, respectively, fixed by Parliament.
32
The circumstances of the confrontational aggravated burglary were particularly grave. This was not spontaneous offending. You had armed yourself with the
mattock handle and the 15-centimetre knife, prior to leaving your home. Over the course of the 12-minute walk to the victim's house you had time to reconsider your proposed course, but did not desist.
33Your intent, at the point you smashed the window and forced your entry through the front door, was to violently assault your former partner with those weapons, as can be inferred from your conduct immediately upon entry. This is a significant aggravating feature that marks the gravity of the crime. You forced entry to the home after midnight, when it was dark and the occupants were likely to be asleep. You knew Ms McCauley was at home. What appears to have driven your offending was a sense of overwhelming anger, jealousy and bitterness following the breakup, both as to Ms McCauley’s new relationship and the ongoing financial negotiations. As the Court of Appeal stated in the case of Meyers:[4]
'Those who might, in a mood of frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner, must realise that, if they do so, they will almost certainly spend a long time in prison.'
[4]DPP v. Meyers [2014] VSCA 314, at [46]
34The authorities are clear that general deterrence is a sentencing principle of great importance for confrontational aggravated burglaries committed in such circumstances. Others who may be minded to act in such a way to terrorise their former intimate partners must be unequivocally deterred from such conduct.
35This was also a particularly serious instance of the offence of recklessly causing serious injury. There was a clear danger posed by using weapons such as the mattock handle and a serrated knife to strike the victim repeatedly, including to the head. The probability of Ms McCauley sustaining significant injuries in such circumstances was high.
36
Your assault continued even though the victim could do no more than put her hands up to defend herself. The force used was sufficient to bend the blade of the knife. That this appalling violence was perpetrated in the presence of your
15-year-old daughter is relevant to my assessment of the gravity of your offending. Both your daughter and her mother were in bed in their home, where they were entitled to be safe, both from violence and from witnessing violence. Your daughter's pleas for you to stop your sustained attack went unheeded until she actually pushed you in the back and yelled at you to leave. By your conduct you breached your obligation to care for and to protect your daughter from such an experience.
37This was not the first time you had recklessly inflicted injury to Ms McCauley. In 2007 you had thrown a coffee mug at her with such force that she sustained a fractured ankle. Of concern, this incident also occurred in the presence of a young family member.
38
The victim's physical injuries arising from the events in June 2021 were significant. As outlined, the skull laceration, caused by blunt force trauma, required staples. Her multiple rib fractures were also caused by
blunt force trauma. The wounds to her back, shoulder, hands and fingers were caused by sharp force trauma inflicted by your use of the serrated knife.
Multiple injuries to her body denoted at least seven impacts to her ribs, clavicle, back, jaw, temple, scalp and hands, indicative of your sustained assault on her. She immediately suffered symptoms consistent with concussion.
39
The terrifying ordeal has understandably taken its toll on the
psychological wellbeing of the victim. Ms McCauley has been diagnosed with a
post-traumatic stress disorder requiring ongoing psychological therapy. The events have also had an adverse impact on her concentration and memory for which she has been referred for neuropsychological assessment.
40The magnitude of your offending, and the impact it had on Ms McCauley and your daughters is reflected in their victim impact statements. As the victim impact statements attest, the damage caused by your conduct has been palpable and profound.
41
Ms McCauley describes your attack on her as frenzied and brutal. In her statement
Ms McCauley outlines the impact of the physical injuries – of being hospitalised for a week and then unable to return to normal duties for many months – but also the debilitating emotional impact of your crime. She now struggles with
memory loss, difficulty sleeping and terrifying nightmares. She no longer feels safe and requires ongoing counselling for post-traumatic stress disorder. She says she is left seeking answers for conduct that defies understanding.
42Ms McCauley’s victim impact statement also tells of the impact your offending had on your daughters – and the loss of trust caused by knowing the father they believed should protect them was the one to cause such harm.
43
This loss of trust is reflected in the victim impact statements of Matilda and
Jamila – with Matilda saying that night has left her in fear and asking,
'who would think a Dad could do this?'She says she now feels frightened, anxious and suffers flashbacks of the incident. She says your offending has undermined her ability to trust others. The family needed to move house as Matilda was terrified to return there. Matilda says she experienced bullying at school following the incident. As a result she now avoids socialising and requires ongoing medication and psychological counselling.
44
Jamila’s statement also reflects on your obligation as a father to protect and nurture your children. She says you ignored this when you decided to physically attack her mother, leaving her with overwhelming anger. She has since lost her job. She says she tried to be there for you after the separation, but feels
'that obviously wasn't enough for you.' Jamila says she hopes you realise how much pain and suffering you have caused the entire family.
45These summaries do not do full justice to the victim impact statements. I have had regard to the entirety of each of the statements. Clearly, your offending has caused Ms McCauley and your two daughters immense pain. I have taken these matters into account as one of the many sentencing considerations that apply in this case.
46You bear a high moral culpability for your conduct, however, this is also informed by your personal background and history, to which I now turn.
Personal circumstances
47
Your personal circumstances are set out in some detail in the
psychological report of Simon Candlish dated 30 January 2022 that was prepared for the purposes of your plea.[5]
[5]Exhibit 3 - Report of Simon Candlish, psychologist dated 30 January 2022
48
You were born in Wodonga on 4 October 1971. Yours was a happy and stable childhood. You had two older siblings and a younger brother with whom you got along well. You completed secondary education to Year 11, with the last
two years including technical school. You had no learning difficulties or
behavioural issues at school. However, you reported to Mr Candlish that you were socially awkward as a child and that this continued into your adult years.
49After completing school you worked in manufacturing, including a position you held with a packaging manufacturer for 22 years. You have a strong work ethic, demonstrated by the fact you have been in continuous employment all your life, with the exception of a brief period in your early twenties.
50
You had a number of early relationships before you met Ms McCauley at the age of 20. You were in the relationship with Ms McCauley for 10 years
before marrying. You separated after 22 years of marriage in January 2021, approximately five months before committing the offences in June 2021. You told Mr Candlish that you were 'very insulted' when Ms McCauley commenced a
new relationship shortly after your break-up.
51
Your counsel tendered character references written by your mother, sister,
brother-in-law, your younger brother and three long-term friends.[6] Your friends and family speak highly of you. Your mother observes that you are quiet, 'somewhat shy' and 'stoic' and that your priority in life has been to work hard to provide for your family. Your brother and sister similarly reflect on your
reserved nature and your strong work ethic. Both describe you as a family man who enjoyed time with your daughters, taking them on outdoor activities. Your brother describes you as 'a good man who has acted in a way that has changed many lives'. You retain the support of your mother and siblings.
[6]Exhibit 1
52
Your friends also speak of you as a quiet, reserved, hardworking and
honest person. They say they find it difficult to reconcile the person they know with the one who committed these offences. Some of your references reflect on your remorse, with one friend stating you allowed your 'anger and pain' to get the better of you and that you are truly remorseful for your actions on that night.
Mental health
53Having conducted psychometric tests, Mr Candlish found you did not currently present with a major mental illness or 'personality impairment'.
54
As to the circumstances leading to your offending, you told Mr Candlish that you and your wife had begun to drift apart in the 12 months leading up to the offence and that you felt 'insulted' when you separated, believing you had 'done a good job as a husband and a father' and that you had 'worked so hard'. You described feeling upset that your wife had 'made her mind up' to leave without attempting to address your marital problems, stating you felt 'it was like you're not good enough anymore'. You said you found it 'insensitive and insulting' that
Ms McCauley's new partner was spending time in her new home with your children.
55
Mr Candlish says you avoided explicitly stating you felt angry and hurt by your wife – preferring instead to describe her conduct as 'insulting'. When pressed about this, you agreed you had been 'ego bruised' and experienced
'feeling like your family's left and you weren't good enough.' Mr Candlish says you considered your wife was 'behaving manipulatively' after the separation and that when she commenced a new relationship you stated she '[took] it to another level, she was rather flippant'.
56When asked about your intention on that night, you told Mr Candlish you wanted to give your wife an 'attitude adjustment' and to 'inflict some pain to show her what I was feeling'. You added that you felt ashamed and that it was a cowardly way to act.
57As to your mental health at the time of the offending, Mr Candlish states:
'Mr Gruber's account of his response to his separation from his ex-wife and the circumstances of his ex-wife and children moving into a new home is suggestive of depressive symptoms. This includes insomnia, poor concentration, fatigue, worthlessness and reduced interest in activities. His tendency towards detachment and anger may have masked his feelings of depression. Mr Gruber appears to have previously met the diagnostic criteria for Major Depressive Disorder
(Moderate Severity, in full remission) around the time of his offending. It is recognised this is based entirely on his self-report. Nevertheless, his scores based on the PDS (being the Paulhus Deception Scale) and PAI
(being the Personality Assessment Inventory) indicate a tendency to produce valid results which seem to indicate a candid style of responding.'
58Mr Candlish opines that you relied upon stoicism and avoidance-based coping when experiencing relationship issues. He states your tendency towards detachment and anger may have masked your feelings of depression and that the circumstances of your separation were the cause of a 'strong sense of humiliation and hurt'. In Mr Candlish’s view, you considered Ms McCauley's relationship as a 'deliberate act of maliciousness and experienced a desire for revenge and retribution'. Mr Candlish concludes your 'violence was related to your poor self-awareness, poor mood, a history of emotional over-control and distorted thinking … contributing to heightened anger'. You were further disinhibited by your alcohol consumption on the evening although this is not relied upon as a mitigating feature of your offending.
59Mr Candlish recommends psychological intervention to address your emotional regulation and anger management, in addition to improving your skills in communication and emotional expression. These are all sensible recommendations. Given the nature of your offending, your engagement in an accredited Men’s Behavioural Change Program should also be explored.
60Having conducted psychometric testing, Mr Candlish assessed you as a low risk of future violent offending.
Other sentencing considerations
61Having assessed the objective gravity of your offending, I turn now to other matters highlighted by the submissions of your counsel in mitigation of your sentence.
Guilty plea and remorse
62First and foremost is your guilty plea. It is accepted that you pleaded guilty at the earliest opportunity. In doing so you spared the victims the ordeal of having to give evidence in court and the community the cost and time associated with a trial. Given the circumstances of your offending it is significant that your plea saved your ex-wife and children the emotional stress and trauma that would undoubtedly have been associated with them having to re-live these events. Your plea has heightened utility at this time given the delays occasioned to trials in the wake of the pandemic.[7]
[7]Worboyes v. The Queen [2021] VSCA 169
63At the commencement of your plea your counsel Mr Goodenough proffered an apology to the victims on your behalf. A letter you had prepared for the court was read aloud in which you acknowledge the sadness and suffering caused by your actions. You expressed regret and apologised for your 'terrible behaviour'.[8] As stated, you have also expressed your remorse to friends and family.
[8]Exhibit 4
64
Given your responses when interviewed by police immediately following the incident, I am unable to find that your remorse was immediate. However, with time to reflect, I accept that your early plea is one that both acknowledges responsibility for your conduct and reflects your remorse. That said, for the reasons I explain when I discuss your prospects of rehabilitation, I consider you are yet to fully understand or confront the nature of your offending against your
former partner and its ramifications for her and your daughters.
Mental health
65On your behalf it was submitted that your mental health condition at the time of the offending operated to reduce your moral culpability in line with the authority in Verdins.[9] For Verdins considerations to be enlivened the nature and severity of an offender's impairment must be assessed, in addition to the effect of that condition on the mental capacity of the offender. There must be a proper foundation to find a connection between the mental impairment and the offender's moral culpability or the need for general and specific deterrence to be moderated.
[9]R v. Verdins (2007) 16 VR 269 (‘Verdins’)
66
Here the prosecution argues the opinion of Mr Candlish does not support an application of Verdins principles. This submission is made on the basis
Mr Candlish appears to reach his conclusion regarding your mental health state
on a tentative basis. However, properly read, I consider Mr Candlish's statement that you 'appeared to experience a period of major depression after your separation' and that your 'depressive symptoms are most likely to have reduced your capacity for perspective-taking and empathy and impaired his ability to think rationally' relate more to the fact that Mr Candlish was making this assessment retrospectively and in circumstances where he determined your depressive state had now resolved.
67
Mr Candlish states he assessed your major depressive disorder of
moderate severity at the time of your offending based on your symptoms of insomnia, fatigue, feelings of worthlessness and reduced interest in activities at around that time. He opines that your major depressive disorder impaired your ability to think rationally and reduced your capacity to interrupt your ruminations. As a consequence, I accept that your major depressive disorder at the time moderates your culpability to some degree. However, as explained by
Mr Candlish, other factors also contributed to your actions that night, including poor anger regulation, distorted thinking and emotional over-control. Added to this, you were disinhibited through the consumption of alcohol.
68
In my judgement, any assessment of your moral culpability is complicated. The offending arose in the context of a failed relationship, an inability to manage your anger and a desire for retribution. You were aware of your capacity to react violently in anger since the incident in 2007. You were aware your behaviour was wrong. It is in this context that your major depressive disorder also impacted on your perspective and ability to think rationally. In accordance with
Verdins
principles, I accept that your major depressive disorder, being of moderate severity at the time, lessens your culpability to some degree. Your mental health condition plays some role in moderating the need for the sentence to operate as both a general and specific deterrent. More particularly, it also informs my assessment of your prospects of rehabilitation.
Previous good character and prospects of rehabilitation
69
On your behalf, Mr Goodenough submitted that you are otherwise a person of
good character and that, prior to this offence, you had led a modest, productive, and law-abiding life with a background characterised by hard work.
70Your friends and family all speak highly of you in this context and also express shock that you engaged in such violent offending.
71
Clearly, your offending in 2007 is also relevant to my assessment of your character. However, I accept that your prior good character entitles you to
some leniency, however, the weight that I attach to that factor alone is modest, having regard to the nature and gravity of your offending.
72
Your prior good character also has a bearing on my assessment of your prospects of rehabilitation. In undertaking this assessment I have had regard to the psychological assessment of Mr Candlish that you pose a low risk of future violent offending and have no current mental health concerns. Mr Candlish also observed that you have 'a long history of otherwise pro-social behaviour' and therefore have the 'capacity to respond effectively to rehabilitative interventions.' I also note that since being remanded in custody you have completed an
Atlas Remand Program and have enrolled in, but are yet to commence, an anger management and communication program.
73
I am satisfied you are motivated to engage in offence-specific treatment and counselling. However, your responses to Mr Candlish also indicated a lack of insight into the emotional anger and “distorted thinking” that drove your behaviour. It will be important that you demonstrate a preparedness to discuss your offending behaviours to develop greater insight into your offending through
specialised treatment.
74
You continue to have the support of your mother, siblings and friends. There is no reason to conclude you will not continue in employment upon your release. Indeed, your brother has indicated a preparedness to assist you in this regard. Subject to your positive engagement in the counselling recommended by
Mr Candlish, I assess your prospects of rehabilitation to be reasonably good. There does, however, remain a need for the sentence to operate as a specific deterrent for you.
Burden of imprisonment
75
It is accepted that your time on remand has run in parallel with the
COVID-19 pandemic and the restrictions imposed on custodial settings in response. These have included a suspension of programs and a loss of
face-to-face visits with family and friends. These restrictions have meant you have only had weekly phone calls with family since being remanded and no
in-person visits. I accept this has added to the hardship of your custody, particularly as a first time offender.
76In his sentencing submissions Mr Goodenough acknowledged that a sentence of imprisonment, with a fixed non-parole period, was the only available sentencing disposition. He did, however, highlight the matters to be taken into account in mitigation of your sentence and urged the court not to impose a crushing sentence. Mr Goodenough also submitted that a significant degree of concurrency was warranted given the two offences comprising charges 2 and 3 arose from the one incident of offending in June 2021. Further, that viewed in isolation, it was submitted that the offending from 2007 giving rise to charge 1, may not have warranted an immediate term of imprisonment. I have taken these submissions into account in determining an appropriate sentence.
77I have also had regard to the decisions referred to by the prosecution as a guide to current sentencing practices,[10] whilst bearing in mind that sentencing practice cannot govern or control the sentence to be imposed. These decisions signify, yet again, the importance of general deterrence in cases such as these.
[10]Hill v. The Queen [2020] VSCA 220; Newton v. The Queen [2021] VSCA 207; Tan v. The Queen [2019] VSCA 226
78
The prosecution submissions highlighted the relevant sentencing principles of
general deterrence, just punishment and denunciation. Having regard to the nature and gravity of your offending, I accept these are the paramount sentencing considerations in addition to the need to ensure the protection of the community, most particularly that of your former wife, from unprovoked violence. This was a shocking instance of violent offending fuelled by anger and resentment directed at your former wife. The harmful impact of your offending on her and your children will be long-lasting. In sentencing you I must clearly denounce your offending and deter others from such utterly unacceptable conduct.
Sentence
79Balancing the various sentencing considerations to which I have referred, whilst taking into account the maximum penalty for the offences, I sentence you as follows.
80
On charge 1 – causing injury recklessly – you are convicted and sentenced to
18 months' imprisonment.
81
On charge 2 – aggravated burglary – you are convicted and sentenced to
four years' imprisonment. This is the base sentence.
82On charge 3 – recklessly causing serious injury – you are convicted and sentenced to four years' imprisonment.
83
Whilst acknowledging that Charges 2 and 3 arose out of the one incident, it is appropriate that the cumulation imposed reflect the separate criminality of the
two offences. I have taken care in fixing the sentence for the offence of
aggravated burglary to ensure you are not doubly punished for the offence that was committed after your entry into the house. Charge 2 was completed upon your entry. The sentence imposed on that offence cannot involve any element of punishment for what happened thereafter.
84
Taking into account the sentencing principle of totality, I order that two years of the sentence imposed on Charge 3 be served cumulatively upon the
sentence imposed on Charge 2. It is also appropriate that there be some cumulation for the separate offending in 2007. I order that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentences imposed on Charges 2 and 3 and upon each other.
85This gives a total effective sentence of six years, six months' imprisonment. I direct that you serve a minimum of three years, nine months before being eligible for parole.
86
Pursuant to s18 of the Sentencing Act 1991, I direct that 270 days of
pre-sentence detention be reckoned as already served.
87I make the disposal order sought by the prosecution, noting that it is not opposed.
88
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that, but for your plea of guilty, I would otherwise have imposed a sentence of nine years, six months'
imprisonment, with a non-parole period of six years and three months'
imprisonment.
89Do counsel have any questions or require clarification in relation to the sentence I have imposed?
90MR GOODENOUGH: Not from me, Your Honour.
91MS MALOBABIC: No, Your Honour. As Your Honour pleases.
92
HER HONOUR: Thank you. Mr Goodenough, do any additional
custody management issues need to be noted on behalf of your client?
93MR GOODENOUGH: Your Honour, there's nothing else of which we're aware.
94HER HONOUR: All right. Would you like an opportunity to speak with your client?
95MR GOODENOUGH: I will say no at this stage, Your Honour. My instructor and I will be in touch with Mr Gruber and have a longer extended conversation with him subsequent to this.
96HER HONOUR: Thank you. Can I thank counsel. We'll adjourn the court.
97MR GOODENOUGH: If it please the court.
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