Director of Public Prosecutions v Heaven

[2022] VCC 473

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 21-00937
CR 21-01691

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL HEAVEN &
PATRICK IAULUALO

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2022
DATE OF SENTENCE:	6 April 2022
CASE MAY BE CITED AS:	DPP v Heaven & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 473

REASONS FOR SENTENCE
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Subject: Home Invasion

Sentence: Heaven - 4 years and 3 months imprisonment/NP 2.9

Iaulualo – 4 years and 6 months imprisonment/NP 3

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Montgomery
For Accused Heaven	Mr B. Tait
For Accused Iaulualo	Mr J. Slucki

HIS HONOUR:

1.Patrick Iaulualo and Daniel Heaven, each of you has pleaded guilty to a number of charges arising out of offending by each of you on 18 October 2020 when the two of you, together with another man Jacques Dalais, illegally entered a property at Carrum Downs.

2.Dalais has now pleaded not guilty and will be tried by a jury.

3.You Heaven, have pleaded guilty to one charge of home invasion and two charges of common law assault and one charge of possession of a drug of dependence, cocaine.  Those charges are contained in Indictment M10316307.  In addition, you have pleaded guilty to two related summary offences, namely, committing an indictable offence whilst on bail, and failing to comply with a curfew condition of bail.

4.You Iaulualo have pleaded guilty to one charge of home invasion and one charge of common law assault.  Those charges are contained in Indictment M10289880.1.

5.In passing sentence one of the factors that I must take into account is the maximum penalties for these offences prescribed by the Parliament.

6.The offence of home invasion carries a maximum penalty of 25 years' imprisonment.  This offence is also a category 2 offence for the purposes of the Sentencing Act 1991 ('the Act').  Except in certain circumstances set out in the Act, a sentencing court must sentence an offender to a term of imprisonment for this offence.  In this case, counsel for each of you accepted that I must impose a term of imprisonment for this offence.

7.The offence of common law assault carries a maximum sentence of imprisonment for five (5) years.

8.The offence of possession of a drug of dependence in the circumstances of your offending Heaven, has a maximum penalty of 30 penalty units or imprisonment for one year.  Here the prosecution accepts you possessed the cocaine for self-use, and not for trafficking.

9.The related summary charges faced by you Heaven, of committing an indictable offence whilst on bail, and the breaching a curfew condition of bail, each carries a maximum sentence of imprisonment for three (3) months.

10.As each of you can see from the maximum penalties prescribed by the Parliament for each of these indictable offences that you have pleaded guilty to, the Parliament rightly regards offending of this kind most seriously.  In sentencing for crimes of this kind the court must appropriately have regard to general deterrence and denunciation, just punishment and protection of the public.  Applying these sentencing principles, the court must have regard to all of the circumstances of the case and to your prospects for rehabilitation.

11.The circumstances surrounding the offending of each of you are summarised in the summary of prosecution opening dated 1 March 2022.  That document was read in open court by the prosecutor Mr Porceddu.  Each of your counsel accepted that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary for me to again set out in detail, that which is already set out the prosecution summary.  I do so only in an abbreviated way.

12.The property at Carrum Downs was the residence of Paul & Julie Betteridge and their son, Jake.  Neither of you knew these people nor had you previously had anything to do with them.  I was told that you Iaulualo, had an associate that had had a business disagreement with Paul Betterridge and you apparently took it upon yourself to do something about this.  What followed was stupid behaviour by the both of you.

13.Shortly after midnight on 18 October 2020. the two of you and Dalais went to the Betteridge home in an Uber.  Not unexpectedly, the Betteridge family were all in bed asleep when you arrived.  The premises was fitted with CCTV security and you were captured on this arriving at the property.  You Iaulualo, carried a small high powered butane gas torch and you Heaven, were aware of this.  You Heaven, wore a bandana over your face and a cap on your head.  You walked to the front door of the premises which you Iaulualo, tried to open.

14.Mrs Betteridge heard noise and awoke.  She went to the front door and she saw each of you on the porch.  She awoke her husband and her son.  Paul and
Jake Betteridge went to the front door.  Paul Betteridge was armed with a baseball bat for protection.

15.You Heaven, attempted to open the front screen door.  When unsuccessful, you Iaulualo, violently kicked at the screen door three times before it caved in and the front door opened.

16.You Iaulualo, first entered the house where you were confronted by
Paul Betteridge.  You Heaven, followed.  A confrontation then occurred inside the premises.  Paul Betteridge used the baseball bat to fend the both of you off.  He hit you Iaulualo, with the bat up to three times.  You Heaven, stood behind Iaulualo.  Paul Betteridge yelled out to you asking 'What do you want?'.  You Iaulualo, replied 'I want to fight'

17.By using the baseball bat Paul Betteridge managed to fight off the two of you and both of you exited the house.

18.But you did not leave.  You Iaulualo, continued to 'shape up' in a fighting stance and you Iaulualo, re-entered the property.  You Heaven, also entered the house a second time.  (Charge 1 on each indictment home invasion).

19.Having returned to the house you Heaven, and you Iaulualo, continued to assault Paul Betteridge.  (Charge 2 on each indictment common law assault of
Paul Betteridge).

20.You Heaven, then assaulted Jake Betteridge by hitting him in the head with the butane gas torch that you Iaulualo, had brought with him to the scene.  (Charge 3 on the Heaven indictment common law assault of Jake Betteridge).

21.Julie Betteridge called the police and each of your fled the scene, again departing in an Uber.  The whole frenetic episode of violence lasted only two minutes, but it was enough to inflict injury and instil fear in the occupants who were doing nothing more than sleeping in the sanctity of their own home.  A sanctity violated by you two, whom I think are best described as violent thugs.

22.As a result of the assault upon him by the both of you, Paul Betteridge sustained a broken nose, bruising and swelling to his face, eye and jaw, two purplish superficial abrasions approximately 4 cm in length to the thoracic region of his body, thought to be caused by a blunt instrument, and an injury to his left shoulder.  His injuries can be seen in photos tendered in evidence.

23.Jake Betteridge sustained injuries to his head, back and eye.

24.A detailed police investigation, which included DNA analysis of the butane gas torch and CCTV footage and analysis of call charge records, soon identified each of you as the offenders.

25.You Iaulualo, were arrested and charged on 11 February 2021.  When interviewed you made no comment.

26.You Heaven, were arrested and charged on 15 February 2021.  A search of your premises revealed you possessed a small quantity of cocaine for self-use.  (Charge 4 of the Heaven indictment possession of a drug of dependence).  When interviewed you also made no comment.

27.This is clearly very serious offending.  It is clear from what transpired that each of you went to the home of the Betteridge's for the sole purpose of carrying out violence.  You were accompanied by Jacques Dalais so that the Betteridge's were confronted by three unknown men in the middle of the night.  This was an entirely unprovoked confrontational home invasion in the middle of the night when the occupants were asleep.  I accept it appears the invasion lacked detailed planning and only you Iaulualo, carried a weapon which had limited use.  The offending of each of you invading the Betteridge Home in the middle of the night falls at about mid-range for this kind of offence.

28.The assault of each of you upon Paul Betteridge was serious and inflicted injury to his face and body, as depicted in photographs tendered.  It falls about mid-range for this kind of offence.

29.Heaven, your assault upon Jake Betteridge using the torch also falls at below mid-range for this kind of offence.  It resulted in injury to his face and body as depicted in photographs tendered.

30.I admitted into evidence victim impact statements from Paul and Julie Betterridge.  What comes through is the extreme fear that the actions of each of you instilled into each of the victims.  A fear that will last in the memory of each of them, perhaps forever.  Both continue to have counselling as a consequence of what you did in entering their home in a violent way.  In passing sentence I must have regard to the contents of the victim impact statements.

31.Each of you has pleaded guilty to the charges and indicated that you would do so without a committal.  Each of you accepted committal to this court by straight hand-up brief.  For sentencing purposes, I treat each of you as indicating that you would plead guilty to the charges at the earliest opportunity.

32.By pleading guilty each of you has saved the time and costs of a trial and committal.  Each of you has also saved the victims from having to give evidence against you and to have to re-live these events.  Your respective pleas of guilty to the charges are especially important in the present environment where this court is faced with a considerable backlog in criminal trials because of the COVID-19 pandemic.  By pleading guilty neither of you has contributed to that backlog, and you are each entitled to a significant reduction in sentence for having done so.

33.By pleading guilty to each of the charges, each of you has accepted responsibility for your respective offending and each of you has advanced the administration of justice.  For that you are each entitled to, and will receive, a reduction in sentence and this will be reflected in the overall sentence of each of you that I will soon impose.  Your respective pleas of guilty also signify your remorse for this offending which I have taken into account.

34.I turn to some matters personal to you Iaulualo.  Your counsel Mr Bloemen filed a helpful outline of his submissions in writing and he spoke to those submissions.  He accepted that your offending was mid-range and that the only appropriate disposition was the making of a head sentence of imprisonment and the fixing of a non-parole period.

35.You are now 28 years of age.  When arraigned you admitted prior convictions from five previous court appearances in the Dandenong Magistrates’ Court between 2016 and 2019.  You have prior convictions for weapons offences, assault with a weapon, stalking, criminal damage and contravening a family violence intervention order.

36.Mr Bloemen told me that at the time of this offending you were going through personal difficulties.  You had been hospitalised in late 2019 early 2020.  There were apparently tensions between your ex-wife and your then pregnant girlfriend which caused you stress.  That would not be unexpected.  Your employment as a carpenter was reduced because of the pandemic.  I was told and accept that absent work, and with relationship difficulties and lack of access to your children you turned to alcohol and drug use to cope with these stressors.  I was told and accept that at the time of the offending you were on a four day bender of cocaine and alcohol use.  That explains your offending but it does not excuse it in any way.

37.I was told that now that you are drug free in a custodial setting, you have reflected on your conduct with regret for your actions.  I accept that you now appear to have some insight into your offending.

38.Your mother died when you were very young.  Your father re-partnered and now lives in Narre Warren.  You are one of six children.  You were born in New Zealand and grew up in Auckland South which you instructed was 'the Bronx of New Zealand'.  You instructed counsel that you saw a lot of assaults and violence on the streets growing up.  You also instructed that violence was a feature of your home life and that you were frequently subjected to violent acts.

39.Your family was said to be itinerant, and you attended seven different primary schools where you are said to have been bullied to which you responded with violence because that is all you knew.  I received into evidence a reference from your brother Francis, who speaks of your difficult upbringing and of your expressed remorse.  I accept that you have had a somewhat disadvantaged background and in passing sentence I have taken this all into account.

40.You have two children (both girls) with your former wife from whom you separated in 2018.  You have re-partnered and have another child aged one whom you have not seen since your remand upon arrest.  I received into evidence a reference from your partner (recording malfunction 09:49:52-09:51:54) Tanika Sexton who speaks favourably of you as a hard worker and father, about your difficult upbringing and about the difficulties you have had in keeping in contact with family whilst on remand. 

41.You have had limited schooling.  You completed Year 7 in New Zealand before moving to Australia where you attended a secondary college in Hallam, but you were expelled in year 10. You have talent as a rugby player and represented Victoria in under 16 and under 18 competition.

42.Despite the difficulties of your upbringing and education you have a good work history.  You had employment initially in the motor vehicle industry and then as a security guard.  Upon your release from a prison sentence in 2016 you commenced an apprenticeship in carpentry which you underwent for two years.  You then commenced your own business and you were in full time work as a carpenter but this came to a halt due to the pandemic.  Your work was mainly residential.  I received into evidence a reference from a former employer
Rhys Koscel who speaks very highly of you as an employee carpenter.

43.Excessive alcohol consumption has been an issue for you since aged 17.  You used methamphetamine for a period of three months in 2018 which produced psychotic symptoms in you.  From 2015 you have used cocaine heavily and daily but more at weekends combined with alcohol.

44.You have had three periods in your life when you are said to have experienced suicidal ideation.  In December 2017, you were diagnosed at Monash Hospital as suffering an adjustment disorder and you were prescribed medications in the form of anti-depressants and anti-psychotic drugs.

45.In June 2018 you were having suicidal thoughts and suffering anxiety and poor sleep.  You were again diagnosed by a CAT team as suffering from an adjustment disorder.

46.In December 2019 you were admitted as a voluntary patient at Casey Hospital and again diagnosed with an adjustment disorder, but then with Cluster B personality and mixed anti-social borderline traits.  You were commenced on a drug, escitalopram to assist with your mood and discharged on 3 January 2020.  You soon after, ceased taking your prescribed medication.

47.I received into evidence a psychiatric report from Dr Jacqueline Rakov dated
14 March 2022.  She assessed you via video link from Port Phillip Prison on
4 February 2022.  She opined that you currently do not suffer from a diagnosable psychiatric illness and that your substance use disorder is in remission in a custodial setting.  Mr Bloemen did not place any reliance upon Verdins considerations.

48.You have been in custody since 22 February 2021.  You have served 420 days by way of pre-sentence detention.  For the past five months you have been at Port Phillip Prison, where you are a remand prisoner with limitations as to what programs and work is available to you.  Your visits have been curtailed because of the pandemic, and whilst you have had two visits from your partner, you have only had two zoom contacts with your children.  I accept your time in custody has been, and would be more burdensome because of the pandemic.

49.You are a permanent resident in Australia but not an Australian citizen.  Because of this offending and the sentence I will impose, you are at high risk of being deported from this country upon release from prison.  I accept that this is a further burden that you will have to endure whilst in prison, especially because your children and your current partner all reside in Australia.

50.You do have ongoing family support and you do have good prospects for employment, and I accept you regret this offending and have empathy for the victims of your crimes.  This is the first lengthy term of imprisonment you will have served.  They are all positive factors that suggest your prospects for rehabilitation are reasonable.  However, I have formed the opinion that your prospects for rehabilitation must be considered to be guarded.  That is because this offending occurred in the context of long term drug and alcohol abuse.  You are in remission now in a custodial setting, whether or not you can remain drug and alcohol free outside of prison is up to you, and remains to be seen.

51.Mr Bloemen conceded on the plea that you were the principal offender in these crimes.  It was your idea to go to the home of the Betteridge's and assault the occupants.  You led the way in forcing open the front door.  But you Heaven, joined in fully, and you assaulted Peter Betteridge and also his son so that you have one extra charge.  You Heaven, also offended whilst on bail for other offending.

52.In sentencing you Iaulualo, I must appropriately have regard to deterrence, both general and specific, denunciation, just punishment, and protection of the public.  I must have regard to all of the circumstances of the case and to your prospects of rehabilitation, which as I say must be considered to be guarded.  I must also keep in mind the principle of parity in sentencing.

53.I turn to deal with some personal matters relating to you, Heaven.

54.You are now aged 32.  When you were arraigned you also admitted a prior criminal history from six previous court appearances.  In 2011 in this court, you were convicted and sentenced on charges of aggravated burglary and intentionally causing injury and common law assault.  At the time you were aged 22 and a youthful offender.  You received a total effective sentence at the time of 28 months' imprisonment, 22 months of which was suspended.  Most of your other prior convictions are for driving offences.

55.You were arrested on 15 February 2021 and you were remanded in custody.  You did not apply for bail.  Whilst in custody you have served a sentence of six months' imprisonment imposed in the Frankston Magistrates’ Court on 7 October 2021.  Because you have been in custody since 26 February 2021, and six months of that time was accounted for by another sentence imposed for unrelated offending, there is a totality issue that I must have regard to in the sentencing of you and in the fixing of a non-parole period.  I was told and accept you have served 255 days pre-sentence detention for this offending.

56.Mr Tait who appeared before me on your behalf, filed a helpful written outline of his submissions.  He too conceded that in sentencing you I must impose a total effective sentence and fix a non-parole period.  He conceded on instructions, that this offending and your prior offending, was committed in the context of drug and alcohol use.

57.You grew up in Mordialloc.  You completed Year 10 at school and then commenced an apprenticeship as an automotive spray painter.  You pursued that career path for six years before commencing work as a concreter, which you did for four years.  I received in evidence a reference from a former employer,
Greg Muzyk, who speaks highly of you as a hard worker.  After you served the sentence I have earlier referred to, you commenced living with your parents and two brothers.  After your earlier release from prison you maintained regular employment until the COVID pandemic.  Immediately prior to your remand you were working in the asbestos removal industry.  In this regard I received in evidence a very good reference from former employer, Brendan Fraser, who trusted you as an employee and manager of other workers.

58.Your relationship with a long term partner ended after she miscarried on Christmas day 2018, and soon after you began drinking heavily.

59.In 2020, two of your close friends disappeared on a fishing trip.  This affected you and you turned to drinking heavily and using cocaine.  In 2021 another friend died from an aneurism.  You instruct this sent you into depression.  Two other close friends are said to have suicided whilst you have been on remand.  You were denied permission to attend their funerals via video link.

60.You have been seeing a psychiatric nurse whilst on remand who has been treating you for depression.

61.Whilst on remand you have completed some courses related to drugs and booked in to do others.  You have been employed in site maintenance and are said to be a 'prisoner representative'.  COVIC restrictions have limited the number of courses available to you and also your visitations rights have been severely curtailed.  Upon release from prison you plan to again live with your parents who have now moved to Maryborough.  I was told and accept that you want an environment where you can work and be away from bad influences.

62.I accept you are remorseful for these crimes.  That comes through in your handwritten letter to me, Exhibit 5.  I was most impressed by what you wrote in that letter.  Another reference from an old friend, Alfie Cardamone, describes you as a close friend and as being 'a kind and respectful person'.

63.Although you have good support and very good references and although you appear to be doing all you can in custody to turn your life around, your prospects for rehabilitation must nevertheless also be guarded.  They depend upon you remaining alcohol and drug free outside of a prison setting.  Drugs and alcohol explain this offending and also your past offending.  I accept you appear to be doing your best to rehabilitate yourself.  Because you have a prior conviction for aggravated burglary and assault the sentencing of you must appropriately reflect the sentencing principle of specific deterrence.

64.The prosecution correctly submits that this offending is of a serious kind, and the law requires that I must impose a head sentence of a term of imprisonment and fix a non-parole period.  It is not suggested otherwise.  It is also not in dispute that in sentencing each of you, I must correctly apply sentencing principles of deterrence, both general and specific, denunciation, just punishment and protection of the public.  I must also have regard to your respective prospects for rehabilitation, which as I have said are guarded.  In passing sentence I have endeavoured to apply these principles.

65.Turning to the formal sentencing of you, Iaulualo.

66.On Charge 1, home invasion, you are convicted and sentenced to imprisonment for a period of four (4) years.

67.On Charge 2, common law assault, you are convicted and sentenced to a term of imprisonment of nine (9) months.

68.I direct that six months of the sentence imposed on Charge 2, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four and a half years' imprisonment.

69.I direct that you serve a minimum term of three years before being eligible for release on parole.

70.For the purposes of s6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charges, I would have imposed a total effective sentence of seven and a half years' imprisonment, and I would have fixed a minimum term of five and a half years, before of which you would have been eligible for release on parole.

71.I declare that there has been 420 days' pre-sentence detention already served of the sentences passed this day, and I direct that 420 days be reckoned as having been served, be entered into the records of the court and be deducted administratively.

72.I turn to the formal sentencing of you, Heaven.

73.On Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of three and a half years.

74.On Charge 2, common law assault, you are convicted and sentenced to a term of imprisonment of nine (9) months.

75.On Charge 3, common law assault, you are convicted and sentenced to a term of imprisonment of six (6) months.

76.On Charge 4, possess a drug of dependence, you are convicted and discharged.

77.On each of the related summary charges you are convicted and sentenced to a term of imprisonment of one (1) month.

78.I direct that six months of the sentence imposed on Charge 2, and three months of the sentence imposed on Charge 3, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of four years and three months' imprisonment.

79.I direct that you serve a minimum term of two years and nine months before being eligible for release on parole.

80.For the purposes of s6AAA of the Sentencing Act 1991, had you not pleaded guilty to the charges, I would have imposed a total effective sentence of seven and a half years' imprisonment, and I would have fixed a minimum term of five and a half years before which you would have been eligible for release on parole.

81.I declare that there has been 255 days pre-sentence detention already served of the sentences passed this day, and I direct that 255 days be reckoned as having been served, be entered into the records of the court and be deducted administratively.

82.The prosecution seeks the making of forfeiture and disposal orders which were not opposed and I will sign those orders.

83.HIS HONOUR:  Are there any questions relating to that Ms Montgomery?

84.MS MONTGOMERY:  Just one matter, Your Honour.  In relation to the pre-sentence detention for Mr Heaven, for the sentence that he served in 2021 there were 159 days reckoned as time served, when he was sentenced on 7 October, but the sentence actually lapsed on 15 October, so there were some seven other days of that sentence served.

85.HIS HONOUR:  I was told on the plea that there were 235 days, relating to
Mr Heaven.  Indeed, it's in Mr Porceddu's submission.

86.MS MONTGOMERY:  Two hundred and - sorry what was that Your Honour,
235 days?

87.HIS HONOUR:  Yes, 235 days, have a look at paragraph 21 of Mr Porceddu's written submission.

88.MS MONTGOMERY:  Let me just refer to that Your Honour.  I know that's correct, but the calculation I had between then and today, brings us up to 248 days but it could be my calculations, Your Honour.  Let me just double-check from the dates.

89.HIS HONOUR:  Well, I mean, perhaps my arithmetic's wrong.

90.MS MONTGOMERY:  It could well be me, let me double-check that now.

91.HIS HONOUR:  (Recording malfunction 10:05:31-10:06:59). Adjourn the court please Wayne.

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