Director of Public Prosecutions v Hassan

[2023] VCC 1680

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

SEXUAL OFFENCES LIST

Case No. CR-22-01424
Indictment No: N10260067

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULLAHI HASSAN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2023
DATE OF SENTENCE:	19 September 2023
CASE MAY BE CITED AS:	DPP v Hassan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1680

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              37 year old offender – 1 charge of aggravated burglary and 1 charge of sexual assault following a trial and jury verdict of guilty – plea of guilty to one summary charge of possessing a controlled weapon without lawful excuse – aggravating factor that offences committed whilst subject to a community corrections order – prior offending for aggravated burglary and drug related offending – no evidence of remorse – limited mitigating factors – prospects of rehabilitation guarded.

Legislation Cited:      Sentencing Act 1991 (VIC), Confiscations Act 1997 (VIC).

Cases Cited:Bugmy v The Queen [2013] HCA 37, R v Verdins [2007] VSCA 102

Sentence:                  The total effective sentence is 5 years and 7 months with a non-parole period of 4 years.
s6AAA 3 months imprisonment for Summary Charge 5.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Piggott	Solicitor for the Office of Public Prosecutions
For the Accused	Ms J Swiney	James Dowsley & Associates

HER HONOUR:

1Abdullahi Hassan, following a trial, on 17 July 2023, a jury found you guilty of one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment.  You were also found guilty of one charge of sexual assault, which carries a maximum penalty of 10 years’ imprisonment.  In addition, you have consented to one summary charge of possessing a controlled weapon being uplifted from the Magistrates’ Court to this court and have pleaded guilty to that charge.  It carries a maximum penalty of 120 penalty units or 12 months’ imprisonment.

2The circumstances of your offending on the indictable matters are that, shortly after 4.30am on Friday 8 January 2022, you entered the apartment of the victims, Ms Hampton[1] and Mr Kellaway[2], at Unit 4 of 233 Clausen Street, Fitzroy North, as a trespasser with intent to steal, knowing or reckless as to whether or not a person was present in the apartment.  In fact, both of your victims were present in their home and asleep at the time of your entry.  This is the basis of Charge 1, aggravated burglary, of which the jury found you guilty.  At the time of your entry into their apartment, Mr Kellaway was asleep in the study and Ms Hampton was asleep in the bedroom.  It was a hot night and she was lying face down and unclothed.  She gave evidence before the jury that she woke to feel something was extremely wrong.  She was being touched under her buttocks on her genitals.  She felt it was a hand near her buttocks, with the fingers underneath.[3]  This is the conduct constituting Charge 2, sexual assault, of which the jury has found you guilty.

[1]        A pseudonym

[2]        A pseudonym

[3]Transcript (“T”) 14

3You ran the trial on the issue of identity, claiming that you were not the person who had committed either of the offences.

4In my view, the Crown case was a relatively strong circumstantial case.  It compromised the following pieces of evidence:

(a)   Ms Hampton said that, after awakening, she moved to her left to try to get the touching to stop, and ended up sitting up.  As she twisted around, she could see that nobody was there.  However, she could see that her bedroom door was open and the door of the apartment was also open, with light coming inside the apartment from the security light outside the apartment.  She had a direct view through her bedroom door to the front entrance of the apartment, which was some 8 to 10 metres away, and could see that the main door to the apartment was open, but the flyscreen door was closed.  She saw the back of someone running towards the door and, just a few steps from it, she knew, from the build, that it was a man.  The main thing she noticed about the person’s clothing was that everything was dark, but the pants he was wearing were like a cream colour and long.  They stood out because they were a lot lighter than his other clothing and her eyes were drawn to them because they were distinguishingly different.[4]  Ms Hampton’s evidence was that she saw the person push the flyscreen with his shoulder and hip, although she could not be 100 per cent sure if it was, in fact, a hip as well.  She stated that she saw the profile of the person go from a back view to a side profile in silhouette, and she made out the rim, of what she believed to be a hat on a person’s head, like the rim of a cap.  She said that, as the man approached the door, he pushed it and zipped around.  The movement was extremely fast.  He pushed the flyscreen door and had to zip around it to make an exit, and the last view she had of the person was going around the flyscreen door, which opened to the left.[5]  She stated that she is 6 foot in height and the man was not as tall as her.  She described the man’s build as athletic in order to be able to zip out so quickly;[6]

(b)   Police had gathered evidence of CCTV footage from various locations in Fitzroy North, Carlton North and Brunswick East from 3.07am to 4.31am on 8 January 2022, and had extracted various still images from that footage.[7]  This footage shows a lone male with a torch, walking through the streets of the locality near the home of the victim, noticeably wearing light-coloured long pants and a cap which, on some footage, one can see a distinctive gold Chicago Bulls’ logo and a peak. Also visible were some distinctive sunglasses with gold rims, which were perched on the peak of the cap.  The footage (and still photographs extracted from it) which was taken outside 31 Nicholson Street, Brunswick East,[8] showed these particular features with some clarity and, also, that the person was wearing runners with distinctive markings on the heel area, as well as carrying a Gucci bag worn across the body, slung over the right shoulder and hanging down to the left-hand side.  The last view of this person showed him turning into the entry of the apartment block where the offending occurred at approximately 4.31am;[9]

(c)   Subsequent to the offending, CCTV footage from St Georges Road, Fitzroy North, shows what appears to be the same person depicted in the earlier footage, running rapidly away from the apartment block in Clausen Street at 4.34am and, at 4.35am;[10]

(d)   Police had gathered evidence from a taxi company, 13CABS, whose records showed that a person had been picked up at 4.39am on 8 January 2022 at an address some 550 metres from the victims’ apartment and taken to an address at 172 Rathmines Street in Fairfield.  This trip was paid for by an account in the name of “Jamal” linked to a mobile telephone number 0424 386 227, which is a Vodafone account in your name.  Police ascertained that, a female lived at that address at 172 Rathmines Street, Fairfield, and she told them that you were a friend of hers.  During January 2022, the 13CABS records revealed that a person using the “Jamal” account made seventy-three trips either to or from that address, as well as fifty-five trips to Salisbury Crescent, Fitzroy North, where the suspect for these offences had first been sighted on CCTV footage at 3.07am on 8 January 2022, not quite an hour and a half prior to the offending.

(e)   Records from 13CABS also showed that, the Jamal account connected to your mobile telephone had been used by a person on 2 January 2022 to take a trip from 5D Dorrington Avenue, Reservoir to the Rose Shamrock Hotel at 709 Plenty Road, Reservoir and back again.  CCTV footage of the arrival of the person using the account connected to your phone was tendered[11] and relied upon by the prosecution as demonstrating that the person in that footage, six days prior to the offending, was wearing a distinctive black cap with a Gold Chicago Bulls’ logo on it and, carrying a Gucci bag worn across the body of the same type featured in CCTV footage on the night of the offending.[12]  Further, police had detected that a transaction on a bank account in your name had taken place at the Rose Shamrock Hotel on 2 January 2022.[13]  Taxi records showed further trips on the Jamal account connected to your mobile phone to the Rose Shamrock Hotel on 3 and 5 January 2022;

(f)    There was evidence that, on 19 January 2022, at the Ampol Service Station at 153-156 High Street Northcote, there had been two transactions on the bank account in your name.[14]  In addition, CCTV footage and still photographs from it were tendered of a male person outside that Ampol Service Station at 3.42am.  The prosecution relied on that footage as showing the distinctive runners which had been worn by the suspect on the night of offending, particularly depicted in Exhibit “T”, as well as a silver watch with a large face on the left wrist, and a similar style of dress, with a cap and an across-the-body shoulder bag hanging down to the left, albeit apparently of a different brand;

(g)   Evidence was adduced of a bank transaction which had taken place at a 7-Eleven store in Elizabeth Street in the CBD on 16 January 2022 on your bank account[15] and still photographs taken from CCTV footage on that day were tendered.[16]  These showed a man of your skin colour with distinctive gold-rimmed sunglasses perched on the rim of a cap (albeit a different cap from that featured in other footage) and an across-the-body shoulder bag similar to the one which had been depicted in the Ampol Service Station footage. Later footage from the Parkview Hotel on 24 January 2022 and still photographs from it were tendered as Exhibit “U”. You admitted that the male depicted in the footage is you. Indeed, you were wearing a distinctive black basketball singlet depicting an LA team logo and the number 13, which police had found in the wardrobe of your bedroom at 5 Matthews Avenue, Reservoir when they executed a search warrant. The footage also showed that you were wearing a black cap with a silver Chicago Bulls’ logo on it, the distinctive gold-rimmed sunglasses, a silver chain around your neck, a silver watch with a large face on your left wrist and an across-the-body shoulder bag similar to what is visible in both the 7-Eleven footage and Ampol Service Station footage. 

(h)   Expert evidence was called from two forensic scientists. One forensic scientist, Ms Zara Lee, gave evidence that she and another forensic scientist had attended the victims’ apartment on 8 January 2022 and had detected a fingerprint on the outside doorknob of the front door, which had been lifted and sent for analysis.  The second forensic scientist, Ms Vanessa Burnie, gave evidence that she compared the latent fingerprint, which had been lifted from the outside front doorknob of the victims’ apartment, with a set of known prints taken from you on 8 February 2022.  She described the process of analysis and comparison undertaken by her and pointed out some ten features of the latent print and your right thumbprint, which she said were identical, causing her to conclude that the latent print had come from your right thumb.  A further independent expert carried out the same process without knowledge of Ms Burnie’s examination and conclusion, and with your known prints revealed only by an identifying number. That independent expert came to the same conclusion as Ms Burnie that the latent fingerprint was identical with your right thumbprint. 

[4]T17, Lines (“L”) 10 ꟷ T18, L18

[5]T19, L3 – T20, L1

[6]T24

[7]Exhibit “E” through to Exhibit “Q” and also Exhibit “T”

[8]Exhibits, “M”, “N” and “T”

[9]Exhibit “Q”

[10]Exhibits “R” and “S”

[11]Exhibit “V” and Exhibit “W”

[12]Exhibits “M”, Exhibit “N” and Exhibit “T”

[13]T202, L3-9

[14]T208, L2-31

[15]T212 - 213

[16]Exhibit “Y”

5After being arrested by police on 8 February 2022, you made a “no comment” record of interview, as is your right.  You gave no evidence at the trial, which is also, plainly, your right. 

6You are presently aged 37 years, having been born on 3 April 1986.  You have a criminal history dating back to 16 October 2015.  Although your earliest offending relates to driving and motor vehicle offences, which are irrelevant to the offending for which I must sentence you, I note that there was one offence showing an element of dishonesty, in that you stated a false name to police.  Further, the fact that you drove while unlicensed and that the motor vehicle you were driving was unregistered, and that you also failed to answer bail are perhaps indicators back then of your scant regard for the law, which has become more evident since that time.  These appearances were at Broadmeadows Magistrates’ Court and you were convicted of the various offences, and fined an aggregate of $900 and suspended from driving for a period of six months.

7On 21 May 2017, you appeared before Melbourne Magistrates’ Court on charges of possessing a controlled weapon without excuse, possessing cocaine, possessing methylamphetamine, failing to answer bail, theft and handling stolen goods.  On each charge, you were convicted and fined $150.

8On 10 September 2021, you appeared before Heidelberg Magistrates’ Court, on charges of unlawful assault, stalking, committing an indictable offence while on bail, aggravated burglary, resisting police, failing to answer bail, making a threat to kill, contravening a conduct condition of bail, threatening to inflict serious injury, driving while authorisation was suspended, possessing a controlled weapon without excuse, going equipped to steal, possessing a dangerous article, possessing a controlled weapon, possessing a prohibited weapon, possessing methylamphetamine, using an unregistered motor vehicle, wilfully damaging property and contravening a conduct condition of bail.  You were convicted and sentenced to serve an aggregate term of 10 months’ imprisonment (270 days of which was reckoned as already served) together with undertaking a Community Corrections Order of 12 months.  The latter order included conditions of supervision, treatment and rehabilitation for drug abuse, mental health assessment and treatment and attendance at offending-behaviour programs. It is an aggravating feature of the offending for which I must sentence you, that it was committed in breach of the Community Corrections Order which was to commence after you were released from custody on 28 September 2021. In any event, it is deeply concerning that you had been convicted and sentenced for an aggravated burglary and other anti-social offences only 4 months prior to committing the offences for which I must sentence you. A police summary of that offending was tendered at the plea hearing.[17] The aggravated burglary committed on 25 February 2020 in the company of a co-accused involved nasty and intimidating conduct towards a young woman in her own home in a context of you apparently seeking to satisfy your illicit drug habit.

[17]Exhibit “C”

9In a plea on your behalf by Ms Swiney, the court was told that you had married a woman in either 2011 or 2012.  You were unable to be more precise about the date of the marriage.  On 20 January 2014, she gave birth to your daughter who is currently nine years old.  You and your wife separated in December 2016, and Ms Swiney stated that, although you had previously used drugs, the breakdown of the marriage had led to you developing a dependency on illicit drug use, in particular, methylamphetamine.  She stated that your drug use was behind the offending for which you came before Melbourne Magistrates’ Court on 21 May 2017, and also the offending for which you came before the Heidelberg Magistrates’ Court on 10 September 2021.

10As a result of the offending for which you were sentenced on 10 September 2021, you had spent 10 months in custody before being released to undertake a Community Correction Order for a period of 12 months.  The conditions mandating supervision, assessment and treatment for drug abuse, and the undertaking by you of behaviour programs as directed, were aimed to be rehabilitative.

11According to your counsel, within one month of the commencement of that Community Correction Order, you failed to attend for drug rehabilitation and, within approximately six weeks, by 11 November 2021, you began to fail to attend supervision appointments.  Contravention proceedings were ultimately brought in relation to your non-compliance. On 14 December 2022, you were sentenced to an aggregate sentence of six months’ imprisonment for such contravention, as well as by way of resentencing on the original offences for which you had been given the order, with the court having taking into account the 10 months’ imprisonment which you had already served.  This sentence lapsed on 25 May 2023.

12Tendered on your behalf at the plea hearing was a report from Mr Jeffrey Cummins, forensic psychologist, dated 22 August 2023.[18]  Your counsel confirmed that the history recorded in that document is correct.  It reveals that you born in Somalia and your parents and siblings arrived in Melbourne as refugees in 1995 when you were aged nine years.  You are apparently one of 12 children and your family is generally a law abiding one, albeit that you stated that one of your brothers had served a period of imprisonment.  Although you had no formal schooling in Somalia, you attended Preston North East Primary School for Grade 6 and then Reservoir District High School where you remained and passed Year 12.

[18]Exhibit “1”

13After leaving school you completed one year of a two year Marketing Diploma course at NMIT TAFE in Preston.  You apparently ceased this course because you found it too demanding, and told Mr Cummins that between the ages of 20 and 29 years you worked in a warehouse.  You also told him about your marriage and subsequent separation, following which gambling on the trots online became a problem for you, as did heavy use of alcohol.  You also began experimenting with methylamphetamine, and became a daily user of it, having previously used “weed and cocaine” prior to getting married.  You claimed that you had never received any treatment in relation your drug use or alcohol dependency, although clearly you were given that opportunity on 10 September 2021 when the disposition at Heidelberg Magistrates Court involved a Community Corrections Order.

14You were unable to offer any explanation to Mr Cummins as to why in the past or in 2022 you had been in possession of a weapon, and maintained that you did not commit the offences of which the jury have found you guilty. You told him that you have no idea how your fingerprint was found on the doorknob of the victims’ home.  You acknowledge that you were dependent upon illicit drugs and alcohol at that time.

15Mr Cummins did not consider that you suffered from any diagnosable psychiatric conditions such as post-traumatic stress disorder, major depressive order, bipolar mood disorder or manic disorder, but noted that you looked and sounded depressed. You had denied suffering any problem relating to stress at the time of the offending, but acknowledged being depressed about the jury verdicts of guilty.

16Mr Cummins diagnosed you as suffering an alcohol use disorder and methylamphetamine dependency at the time of commission of offences.  He also noted a history of some anger management issues, in that in 2008/2009 when you were still playing soccer you had been directed to undertake a one day Anger Management Program by the soccer tribunal because of an on-field incident. He also noted that you had been charged with an assault allegedly committed whilst you were in custody upon remand, although clearly that matter has not been determined and does not form part of the sentencing exercise which I must undertake.  He noted that you take Gabapentin for pain relief for an injury to your leg incurred whilst playing soccer a number of years ago.  Previously when incarcerated you had been on the antidepressant, Avanza, but stated that you had not received any mental health treatment whilst in custody.  You work as a billet and have completed an Occupational Health and Safety course and a “Stop and Go” course.

17Mr Cummins considered that your being found guilty of the sexual assault in the context of an aggravated burglary raised the possibility that you may have some sexual deviance.  However, he considered that you would not undertake any offence specific treatment unless it was mandated.  He considered that your risk for committing a further sexual offence was moderate and that you should be directed to participate in offence specific treatment.

18It would appear that your depression is reactive to the circumstances in which you find yourself in custody. You told Mr Cummins that you miss seeing your daughter, whom you claim to have seen weekly prior to being remanded in custody.  You also miss the company of your family.  However, your counsel stated that you did not have a diagnosis which warranted the application of the principles in R v Verdins[19] and nor did any of the principles in Bugmy v The Queen[20] have application.

[19][2007] VSCA 102

[20][2013] HCA 37

19The plea was remarkable for the relative lack of material in mitigation.  I take into account that present at the plea hearing were two of your brothers who support you.  One of them, Hussein Hassan, provided a reference dated 19 June 2023,[21] stating that you had suffered high levels of stress after the breakdown of your marriage, which resulted in you not being involved with your daughter’s life. He stated that this further added to your stress and he believes led you to using drugs and alcohol and to commit criminal offences.  He noted that you used to coach the local junior soccer team and were loved and respected by your family and friends who continue to support you. 

[21]Exhibit “3”

20Another reference from Amina Liban, President of the Somali Australia Council of Victoria, stated that the author had known you since 2005 and you had been a regular volunteer for that body and supported others.  As I pointed out to your counsel, the statement in that reference “I have personally discussed this issue and he is remorseful for what happened” cannot be given any weight in the light of your continued denial of this offending.

21I find it difficult to accept the proposition that all that has occurred in your life by way of drug addiction and alcohol abuse is attributable to the breakdown of your marriage of four years which apparently came to an end in December 2016.  The CCTV footage which was shown to the jury shows you looking quite athletic and dressed in a distinctive style whilst attending for unexplained reasons and sometimes for unusually short periods of time at various hotels, including late at night or in the early hours of the morning.  You appear to be a very regular user of taxis, and I note that you told Mr Cummins that, having lost your licence for driving offences at the age of 20 years, you never got around to applying for one again. You have not worked since, at least, the end of your marriage almost 7 years ago. There is no explanation before the Court as to how you have supported yourself or what you did with yourself all day during those 7 years.

22Other than the bare assertion to Mr Cummins that you used to see your daughter weekly, there has been no evidence before the court as to the nature of such contact or any support given to her.  Nor has there been any explanation for why you have not sought employment over so many years when the footage shown to the jury appears to indicate that you are able bodied.  You have prior offences for dishonesty and assault and being in possession of weapons.  The material before the court indicates that for many years prior to this offending you have wasted your life. Although Mr Cummins opined that you appeared to fall towards the lower end of average intellectual ability, you certainly had the capacity to complete Year 12 and at least part of a tertiary course.  All factors point to your self-indulgent habits relating to illicit drugs and alcohol as being the reason behind this serious offending.

23You were 35 years old when you committed these offences. It seems that you have very little insight into your situation, in that you had been given an opportunity to undertake rehabilitative treatment pursuant to a Community Correction Order only four months prior to this offending, after apparently having been drug and alcohol free for a period of 10 months in custody.  You did not utilise that opportunity and told Mr Cummins that you doubted that you would require treatment in relation to methylamphetamine or alcohol when you are ultimately released from custody. 

24You have shown no remorse for your offending and put both Ms Hampton and Mr Kellaway through the trauma of having to give evidence and be cross-examined and relive the dreadful experience of the early hours of the morning of 8 January 2022.  The family and community support which you have currently was available to you at the time of the commission of these offences, but it seems that it did not deter you from rapidly lapsing into substance abuse shortly after you were released from custody. I do note that you appear to have more support than many offenders who appear before this court for serious offending and you have no psychiatric or psychological impediments to rehabilitation. However, unless you develop some sort of insight into the antisocial pattern of your behaviour, and the impact that it has upon the community and do something serious to address your idle lifestyle where drug and alcohol abuse has been a prominent feature, and develop some sort of work ethic and stop blaming your failed marriage for everything, then I consider that your prospects of rehabilitation will be poor.

25In April 1997, when the maximum penalty for aggravated burglary was increased to 25 years’ imprisonment, the legislature made it plain that this is a crime which undermines the sense of security which people are entitled to feel in their own homes, and the higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.  The high maximum penalty is indicative of the community view that this type of offending is extremely serious. 

26In your case, there is clear evidence that you were wandering the streets of the neighbourhood of the victims’ home for no apparent lawful purpose in the early hours of the morning.  The CCTV footage shows you turning into the entry of the block of apartments very shortly before you committed the offence of aggravated burglary.  The victims’ apartment was at the very rear of that block of apartments, away from any potential observers on the street.  It was a time of night when one would expect people to be at home and asleep and it was a brazen intrusion into the sanctity of the home of Ms Hampton and Mr Kellaway for the purpose of looking for items to steal.

27Having entered the premises and apparently helped yourself to items, including Ms Hampton’s iPhone, which was charging right beside the bed upon which she was sleeping, you then took it upon yourself to violate her bodily integrity and privacy as she lay sleeping unclothed on her own bed on a hot summer night.  Whilst it could not be said that your repulsive touching of her between her legs around her genital area was premeditated, your sexual assault is a demonstration of conduct by someone who apparently knows no boundaries of human decency and morality. 

28It is easy to imagine how terrifying and profoundly unsettling it was for Ms Hampton to awake to realise that, not only had you been right beside her bed, but actually touching her in this indecent fashion as she slept. It was only the fact that she awoke as you were sexually assaulting her that caused you to cease doing so and flee.  The affect upon her has been quite devastating and far-reaching in its consequences. Also, it has been deeply disturbing for Mr Kellaway, particularly as he has endeavoured to support Ms Hampton in dealing with those consequences.

29Ms Hampton courageously read her Victim Impact Statement in court.[22]  She spoke of feeling frozen in fear and repulsed as though “a thousand spiders had crawled under my skin and I couldn’t get them out”.  She could not again bear to sleep in the bedroom where you had committed this sexual assault upon her. Instead, she slept on the couch in layers of clothes during the heat of summer, with Mr Kellaway positioned between her and the door into the apartment.  She was startled by noises and slight movements and overtaken by fear, particularly as she was aware that you knew, from the items you had stolen, where she lived and what she looked like, and had her name.

[22]Exhibit “E”

30Ms Hampton stated that she no longer felt safe in the world, suffered excruciating nightmares and felt exhausted, shamed, lacking in confidence and happiness and spirit.  She could no longer bear to stay in that apartment, but it took two months to find another one.  She stated that your criminal offending forced them out of what had been their home, and has had an ongoing impact on her intimate relationship with her partner, as well as requiring his support for her fear, panic and tears.

31Mr Kellaway, in his Victim Impact Statement, described the rage that he has felt about what you did and how you shattered Ms Hampton’s sense of stability, safety and self-worth.  He spoke, too, of how he has had to try his best to support her while she works through the trauma that your acts have inflicted upon her. He stated that it has been a long and arduous road which has taken a toll on their relationship.[23]

[23]Exhibit “D”

32Your counsel has acknowledged that the only appropriate sentence for this serious offending is a term of imprisonment involving a head sentence and a non-parole period.  Unhappily, aggravated burglaries which impact upon the sense of privacy and security of members of the community in their own home have become prevalent.  It is trite to say that for a person to realise that an intruder has been creeping around their home whilst they have been present in it is very unsettling and something which no-one should have to bear.  For an intruder to have gone a step further and sexually assault a person whilst she was simply sleeping in her own bed in her own home is appalling behaviour likely to cause terror in a victim.  The psychological damage which you have caused to Ms Hampton has been marked and enduring.

33In sentencing for each of these crimes the court must denounce your conduct and the primary sentencing consideration must be general deterrence.  A message must get through to other members of the community who are wandering around looking for homes to break into, heedless as to whether someone is present inside, that this conduct will not be tolerated and will be appropriately punished.  As I have stated, the sexual assault of Ms Hampton only came to an end because she woke up. It is not to the point that it could have been worse.  It is bad enough that a person who is vulnerable whilst asleep should awake to this repulsive circumstance of an intruder gratuitously touching her between the legs and around her genitals.  This is a discrete offence from the aggravated burglary and the Victim Impact Statement is a powerful testament to the adverse effects of your crime upon Ms Hampton.

34Although s16 of the Sentencing Act has a presumption that terms of imprisonment in these circumstances should be served concurrently unless otherwise directed, in my view, this is a clear case where significant cumulation is warranted.  Obviously, your criminal offending did not only involve a situation of a person waking up to realise there had been an intruder in her home, but a very real violation of her dignity and bodily integrity whilst she should have been entitled to sleep peacefully and safely in her own bed.  I have already commented upon the fact that it is an aggravating feature of this offending that you had only been released from custody some four months earlier and commenced undertaking a Community Correction Order which was designed to be rehabilitative.

35Your counsel’s submission that there are no psychological or psychiatric impediments to your rehabilitation is a double edged sword.  As was pointed out by the Prosecutor, Ms Piggot, you admit to having increased your drug use following the end of your marriage in December 2016 and were plainly before the Melbourne Magistrates’ Court on 21 May 2017 for drug related offences.  There is no reason for you not engaging in drug rehabilitation over the six years that have ensued since that appearance and, as previously noted, you failed to take advantage of the opportunity for rehabilitation given to you when placed on that Community Correction Order.

36People in our community are sick of having their lives adversely affected by the criminal behaviour of drug and alcohol affected persons like yourself.  Courts must uphold the right of every person to feel secure in their own home and the victims of your offending must feel supported and vindicated by our criminal justice system. The protection of the community from you is an important sentencing consideration, given the relatively serious offending, including aggravated burglary and assault and threats to kill for which you appeared before Heidelberg Magistrates’ Court on 10 September 2021.  You also have three prior convictions for possessing a controlled weapon, as well as convictions for possessing a dangerous article in a public place and possessing a prohibited weapon.  The summary offence to which you have pleaded guilty involved the possession of a flick knife which police found under the pillow of your bedroom at your parents’ home in Reservoir.  The possession of such weapons needs to be denounced and stamped out by appropriate punishment.  It is indicative of an anti-social mindset that one should possess such a thing as a flick knife without any lawful excuse. The discrete nature of this offence should be reflected in the sentence imposed by me.

37As I have previously stated, you have demonstrated yourself as someone who has little regard for the law, not only by repeatedly committing crimes, but also failing to comply with court dispositions, including fail to answer bail, contravening conduct conditions of bail and contravening the previously mentioned Community Correction Order.  There is a need in sentencing you for emphasis upon specific deterrence because you simply have not learned from the prior sentences given to you. I also agree with Mr Cummins that you should undertake a sex offenders program.

38In arriving at the sentence that I intend to impose, I note that, since the commission of these offences, you have been in custody since the date of your arrest on 8 February 2022.  Although six months of that time (from 14 December 2022 to 25 May 2023) was spent in serving a sentence relating to breach of the Community Correction Order, and the original offences for which that was given, it is still appropriate to take that six month period into account in applying the principle of totality. I am mindful that this is the longest period that you have spent in custody. It is to your credit that you have apparently been working as a billet and have undertaken a couple of short rehabilitative courses whilst on remand, notwithstanding that you are apparently still on a waiting list for repair of an injury to an anterior cruciate ligament which had bought your participation in soccer to an end.

39Although you did have both your current family and community support when you committed these serious offences, you might be better equipped to take advantage of such support in a positive way when you are ultimately released from custody.  As I have said, presently, I do not regard your prospects of rehabilitation as optimistic, but it would be wrong of this court to ignore them.  It may be that by the time you have served the sentence which I intend to impose you will have had time to reflect upon your wasted life and do something positive to turn it around.

40On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of four years.

41On Charge 2, sexual assault, you are convicted and sentenced to be imprisoned for a period of three years.

42On Summary Offence 5, possessing a controlled weapon, you are convicted and sentenced to be imprisoned for a period of two months.

43The base sentence is that of four years imposed on Charge 1.  I direct that 18 months of the sentence imposed on Charge 2 and one month of the sentence imposed on Summary Charge 5 be served cumulatively upon the base sentence and upon each other.  The total effect of sentence is thus five years and seven months. I direct that you serve a period of four years before becoming eligible for parole.  I declare a period of pre-sentence detention of 425 days to be time reckoned as already served under the sentence imposed this day. 

44Pursuant to s6AAA Sentencing Act, I state that, had it not been for your plea of guilty to Summary Charge 5, I would have sentenced you to be imprisoned for a period of three months.

45Pursuant to s78(1) of the Confiscation Act 1997, in relation to each of the indictable offences, I order the forfeiture to the State of the property referred to in the schedule of the order and I further direct that such property be placed into the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed. This order relates to one pair of Adidas original shoes, one Apple iPhone, one pair of black and gold sunglasses, one black Optus phone sim card and packaging, one “Ediface” men’s watch, one flick knife with brown handle and one silver coloured neck chain.