Director of Public Prosecutions v Hess (a pseudonym)
[2017] VCC 1010
•28 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES HESS [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2017 | |
DATE OF SENTENCE: | 28 July 2017 | |
CASE MAY BE CITED AS: | DPP v Hess (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1010 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr L. Dean | Slades & Parsons |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused and victims and family or witnesses.
HER HONOUR:
1 Charles Hess,[1] you have pleaded guilty on Indictment G13520477 to one charge of aggravated burglary, the maximum penalty applicable to that offence is 25 years’ imprisonment, one charge of armed robbery, the maximum penalty 25 years’ imprisonment, one charge of theft, ten years’ imprisonment and one charge of common law assault, five years’ imprisonment.
[1] Charles Hess is a pseudonym.
2 You have also agreed to me hearing three related summary offences and pleaded guilty to them, specifically two charges of contravening a Family Violence Interim Intervention Order, Summary Charge 5 having occurred on 26 December 2016 and Summary Charge 9 on 27 December 2016. The maximum penalty to each of summary Charges 5 and 9 is two years’ imprisonment. You have also pleaded guilty to committing an indictable offence whilst on bail, with a maximum of three months’ imprisonment (Summary Charge 10).
3 In relation to the offence of theft of a motor vehicle I am also required, pursuant to s.89(4) Sentencing Act 1991, upon conviction, to suspend or cancel your driver’s licence or disqualify you from obtaining a licence.
4 Your offending occurred on 26 and 27 December 2016, and the victims of your offending were Jennifer Knight[2] and Patrick Owen.[3]
[2] Jennifer Knight is a pseudonym.
[3] Patrick Owen is a pseudonym.
5 It is not necessary for me to recount in great detail the facts in this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. In addition, you have admitted an extensive and relevant criminal record, to which I shall shortly refer.
6 I turn to a summary of your offending.
7 Jennifer Knight lived in Doveton, with her 13 year old son, Daniel Knight,[4] and 2 year old daughter, Sarah Hess.[5] Daniel suffers from Asperger’s.
[4] Daniel Knight is a pseudonym.
[5] Sarah Hess is a pseudonym.
8 You and Ms Knight had been in a de facto relationship for two years, however, that ended in September 2016. You are the father of Sarah.
9 At the time of this offending you were on bail in relation to other family violence charges involving Ms Knight (Summary Charge 10), those yet to be finalised.
10 At the time of this offending an Interim Family Violence Intervention Order was in place between Ms Knight, Daniel and Sarah against you. The order was served personally on you on 17 November 2016. Conditions of the order included prohibition on committing family violence, attempting to locate and follow the AFMs, contacting or communicating by any means, approaching or remaining within five metres, going to or remaining within 200 metres of the prohibited address. Those facts form part of the basis for Summary Charges 5 and 9.
11 At approximately 9.00 pm on 26 December 2016, Ms Knight was at home with Sarah. Daniel was not at home at that time. Ms Knight was in the laundry when she heard you knock at the back door of the house. When she did not open the door, you asked if you could stay the night. She refused, and said you were not allowed to be at the address. You asked for food, however she denied that request and told you to leave. You continued to “talk and ramble” but eventually left. I discussed this attendance by you and apparent ‘rebuff’ by Ms Knight of your requests. This has some significance when assessing your reasons for two subsequent attendances. In brief, your then ‘hope’ to be able to sleep at the house is somewhat inconsistent with your explanation for later returning to the house due to concern your property was being stolen from your boarding house or that you were ‘homeless’. The transcript of the plea hearing will reveal that discussion.
12 At approximately 10.00 pm Daniel returned home, and went into his mother’s bedroom and sat on her bed with her. Sarah was asleep in her room. About five minutes later, Ms Knight and Daniel heard a loud noise. You had broken into the house through the back door and were armed with a wooden pick handle. Ms Knight saw you running down the hallway towards her bedroom holding the pick handle (Charge 1, aggravated burglary armed with an offensive weapon – person present, intent to steal).
13 Ms Knight ran towards you, telling Daniel to call the police. Daniel attempted to call police using his mother’s mobile phone. He said, “Me and mum started running … but I threw my speaker at his head … he started staring at me evilly … he was just really mad and frustrated.”
14 You ran past Ms Knight towards Daniel and attempted to grab the phone from him. Daniel ran past you, jumped over the couch, and went back into his mother’s bedroom. As you followed Daniel towards the bedroom, Ms Knight grabbed you on the legs to stop you, however, you shrugged her off and went into the bedroom where Daniel was lying on the bed.
15 Daniel described you pushing his mother over. You then stood over Daniel, held the pick handle above him, and yelled, “Give me the fucking phone and keys.” Daniel refused to hand them over. You continued to demand the phone and keys while still holding the pick handle. Ms Knight said, “It looked like he (you) was going to hit him (Daniel).”
16 She feared for Daniel’s safety, and told Daniel to give the phone to you. Daniel described his mother as being in a “hysteric state at the time ... she was crying saying ‘don’t do this to Daniel ...”. This conduct also relates to Summary Charge 5, contravening Family Violence interim order.
17 Daniel said “I didn’t really want to give it to him but I frightened to death”. You then took the Apple iPhone, house keys and car keys, and ran out the back door. You left the pick handle at the house (Charge 2, armed robbery). You got into Ms Knight’s car and drove away (Charge 3, theft).
18 At 11.48pm Daniel contacted police. Ms Knight told police she was too scared to stay at the address by herself, and arrangements were made for her brother-in‑law, Patrick Owen, to stay with she and Sarah. Daniel was too scared and traumatised to stay at the house, and so went to another family member nearby.
19 After this incident Daniel received a text message from you, sent from his mother’s mobile phone. Part of the message said “I’m never coming back you and your mum are (lies) you will say whatever mum (won’t) you to say ...”
20 At 4.14 am, some few hours later, on 27 December you returned to the address driving the stolen car. You entered the house through the rear door, as that door had been damaged due to the earlier incident that night and was not able to be locked. At this time you had a steel bar with you.
21 Ms Knight and her brother-in‑law, Owen, were in the laundry near the back door. You approached Owen with the bar raised at chest height and ran straight towards him, using the bar to push him into the kitchen. You were very vocal, and you and Owen started wrestling, ending up on the floor in the bathroom. Owen stated you were saying “I’m going to fuckin’ stab you cunt”.
22 During the wrestle you kneed Owen in the face. You then suddenly left, leaving the steel bar at the house, and driving away in the stolen car (Charge 4, common law assault, and also relevant to Charge 9, contravene Family Violence Intervention Order as it applied to the AFM’s).
23 As a result of the assault Owen suffered minor injuries. When police attended they saw you, however, you avoided police and left the scene.
24 Approximately ten minutes later you called Ms Knight and said “I’m going to get into a pursuit with police and suicide by cop”, and later “You better start saving for a new car because I’ve just pushed yours off a cliff”.
25 At approximately 1.05 pm on 27 December 2016 you were located in Rowville, walking towards the stolen car. You gave police Ms Knight’s Apple iPhone and keys. When spoken to by police you shrugged your shoulder and started to cry. You were compliant with police and “agreed that it needed to be sorted out.”
26 You requested to speak to your solicitor and police agreed, although warned you not to contact Ms Knight. You did, however, call her. When police took the phone away from you, you acknowledged you were not permitted to contact her.
27 You were arrested and taken to Narre Warren Police Station, and during the interview acknowledged you were on bail at the time of the offending. You were also aware of the Intervention Order and that you had breached it by being at the house. Initially you could not remember if you attended the house and spoke to Ms Knight prior to entering it, however, when details were put to you, you did recall it. You agreed you attended the prohibited address on 26 December 2016 and took the car keys and phone from Daniel. You said you wanted to borrow Jennifer’s car to pick up your belongings, then take the car back to her and say thank you. You agreed you forced the back door open and were armed with a pick handle. You said you did not recall where you got the pick handle from.
28 You said you walked in with the pick handle, and put it on the bed, grabbed the phone and keys, turned to Ms Knight and said “I’ve got to go, I’ve got to sort this stuff out”. You agreed that Ms Knight was screaming at you. You replied “No comment” when it was put to you that you yelled at Daniel.
29 When it was put to you that you had held the pick handle as if you were going to hit Daniel, you said “It sounds similar but it’s not like how it happened but I’ll just go with ‘no comment’”.
30 You said you ran out after taking the items, as you were more concerned about your personal belongings at your house. When asked if you went back to the house, you initially said “I honestly don’t know. I blacked out”. You later said “I’ve got no comment”.
31 In relation to the assault on Owen you said “The bloke who attacked me ... I got to the back door and he’s just rushed me ... straight through to the kitchen, straight into the bathroom ... hit the back of my head. I went down like a bag of shit ... and I got up and got out of there”.
32 When told of the allegation you were carrying a metal bar, you denied you had a bar. When shown a photo of the bar, you stated “I haven’t seen that before”. You now accept you had that bar.
33 Regarding the allegations that Owen made, you said that ‘they’ were lying. You said you returned to the house on 27 December 2016 to return the stolen car, however, that had not occurred.
34 There are a number of aggravating features of your offending including that you were on bail in relation to your attendance at the property on this day, and I note there is a specific charge that relates to that. Also the victim of the armed robbery was a child.
35 Also that the charge of assault to Owen occurred with a weapon (a steel bar) and threats made by you to him as part of the circumstances.
36 A further aggravating feature of your offending was your return to the property on a subsequent occasion (4.14am) having been to the property earlier at approximately 10.00 pm. On the subsequent occasion the confrontation with Owen occurred.
37 The victims of your offending, specifically Daniel and Jennifer Knight, have suffered considerably in the manner described in their victim impact statements, and I shall shortly refer to those.
38 You have pleaded guilty to the charges before me, and the prosecution accepts you entered your pleas of guilty to these charges at an early opportunity, this matter resolving on 21 May 2017 at committal mention stage. I accept that is so.
39 The fact you have pleaded guilty to these charges, including the summary offences, is relevant in mitigation of your sentence. By your pleas of guilty you have saved the community and court the time and cost of a trial, and witnesses have not been required to give evidence upon your trial, and in that regard I specifically refer to the victims of your offending, including the young children Daniel and potentially Sarah, although I note her very young age at the time.
40 I accept you made ‘some’ admissions to police when interviewed. I discussed your limited admissions with Mr Dean, who appeared on your behalf at the plea hearing. I note you admitted your presence at 10.05 pm and 4.14 am but did not admit having the steel bar with you nor any admission regarding your conduct towards Daniel with the pick handle at 10.05 pm entry.
41 I accept your pleas of guilty indicate some remorse for your offending, and I accept you have expressed remorse to others, specifically to police, Ms Lechner and in your recent letter to the Court.
42 Mr Dean conceded, however, remorse was not evident between your attendance at approximately 10.05 pm and re-attending at approximately 4.14 am the next day.
43 You have been in custody for this offending since 27 December 2016.
44 You have admitted a significant criminal history, and involving serious offending since 27 March 1995. In particular I note prior offences of armed robbery, dishonesty offences generally, damaging property, drugs charges, injury and assault charges, prior offences of breaching intervention orders and driving offences. Most recently at Dandenong Magistrates’ Court on 28 July 2015, you were before the court on charges of burglary, failing to answer bail, contravening Family Violence Intervention Order, and damage and dishonesty offences, for which you received a short term of imprisonment. Your most recent prior appearance was on 18 August 2015, on a charge of recklessly causing injury, for which you received seven days’ imprisonment.
45 I also note that a number of previously imposed court orders have been breached by you, including suspended sentence, intensive correction order and community-based orders.
46 Mr Dean prepared a written outline of submissions for your plea hearing including a chronology, and addressed those during the hearing.
47 Mr Dean relied upon a report prepared by Carla Lechner, Clinical Psychologist, dated 7 July 2016, for much of your background. Ms Lechner referred to your prior history of offending having arisen in the setting of a polysubstance abuse and that you emanate from a dysfunctional family. At the time of this offending you had lost your job, and you and your partner had argued, resulting in the Intervention Order and you being homeless at the time. She described that you tended to respond to stress, rejection and loss by becoming aggressive, and I digress and note that observation is consistent with your prior criminal history, including breaches of Intervention Orders.
48 You are 43 years of age at sentence, the eldest of three sons, with three older half-siblings. Your mother remarried when you were 14. You said you did not get along with your stepfather, who was now deceased. You were starting to have contact with your mother.
49 You grew up in Doveton, attending the local primary school until you completed Grade 6. You reported a history of behavioural dysregulation at school, reflective of your unstable family life.
50 You attended Noble Park Technical School and Hopeton High School, although continued to be involved in fights, and were eventually expelled.
51 You referred to your home life lacking a role model and no discipline, it was “everyone for themselves”. You described being sexually abused by your half-brother on a couple of occasions, and also physically by your mother, her boyfriends, and one of your uncles. Violence was a normal part of your life.
52 After you left home and school at the age of 14 you worked in a shearing shed before returning to Melbourne. At 15 you were working in a meat plant, where you stayed for about nine months. You then moved to a boarding-house in Dandenong, and became a father at the age of 20.
53 You worked as a concreting labourer, washing trucks, and at the meatworks in Berwick. You described that you generally lasted about 12 months in a job before you got bored and were “fired”.
54 You said you had employment for approximately 40 per cent of the time since leaving school.
55 Your last employment was with a shelving company in 2016, a job you held for eight months. You said that when you lost that employment, things went downhill. You also described an incident two weeks before that when you had seen a cab driver robbed in front of your house, and that you were almost stabbed when you went to help. You said you argued with Ms Knight, and police took out the Intervention Order, and at that time you had been sleeping in the car for five to six weeks, at the time you went home and were charged with this aggravated burglary and armed robbery.
56 You described your relationship with Ms Knight as “very complicated”. DHHS took Sarah after about 23 days, although you later got her back. You then lost your job, and “everything turned to shit”. You have four children, the youngest is Sarah.
57 In the opinion of Ms Lechner you currently fulfilled the criteria for a diagnosis of Major Depressive Disorder.
58 Although not formally assessed, you impressed as being of “low average intelligence”. When stressed, you fell back into habits you knew best, substance abuse and/or violence. You had previously, in June 2016, commenced anti-depressant medication, but said you only took it for a couple of weeks.
59 Ms Lechner noted you did not have any established peer support group, and was emotionally dependent on Ms Knight.
60 You understood that your relationship with Ms Knight was now finished.
61 You said you commenced smoking marijuana at the age of 17, using a lot of ‘speed’ in your 20s. You said you did not use ice, although had used a bit of ecstasy and LSD in the past. Your drug of choice had been heroin. You described, however, no illegal drug use for the past four to five years, after you attended Quinn House for three months. You were currently maintained on 16 milligrams of Suboxone. You ceased drinking alcohol five to six years ago.
62 As a result of testing by Ms Lechner she concluded you currently presented as a “high/moderate” risk of future violent behaviour. That risk would be reduced with ongoing abstinence from substance abuse and involvement with psychological assistance such as an anger-management course. I note you have not sought such assistance in the past. Conditions for treatment/assessment were made relevant to various community based dispositions, however you breached such orders and it is likely you did very little to address your offending behaviour.
63 Turning to her summary and opinion, you currently presented with symptoms of major depressive disorder, opioid-use disorder, controlled by a replacement program, and aspects of PTSD.
64
You had high dependency needs, and became destabilised when intimate relationships are under real or perceived threat. You had a deep sense of emotional deprivation, and lashed out in circumstances where you felt rejected or abandoned. You had used drugs in the past as a means of
self-medication.
65 I note in Ms Lechner’s report there was no reference to your first attendance at Ms Knight’s home when you asked to stay the night, such being refused. It is unclear from Ms Lechner’s report whether this was relevant to her overall assessment of your offending and reason/s for your offending.
66 Before me was a letter from you dated 24 July 2017. You described that at the time of this offending you were not in a good place in your life. You were depressed and had lost the trust of Jennifer. That night you had been fighting. You were sorry for the pain you caused both she and Daniel. You were aware you had lost your family as a result. You were aware your behaviour had caused your family to hurt and that you were to blame. You described knowing you had let Jennifer down and hoped that in the years to come she would forgive you. You took full responsibility for your actions.
67 Mr Dean also provided further details of your personal history in his written submissions.
68 You had been charged in relation to the family violence incident in November 2016 (assault upon Ms Knight), and following that Intervention Order being issued you were living in a boarding-house in Dandenong (somewhat different from you being ‘homeless’ and living in a car at the time of this offending).
69 Mr Dean relied principally upon the emotional stress you were under at the time of your offending, and urged that as a result, your moral culpability was reduced. That submission was discussed during your plea hearing.
70
Whilst Mr Dean conceded the principles of Verdins & Ors[6] were not applicable in your case, he nevertheless submitted that consistent with general sentencing principles I should accept that there was a decrease in your moral culpability due to your emotional state at the time. He directed me to
R v Gemmill[7], in which Eames JA referred to the sentencing Judge’s observations that:
[7] [2004] VSCA 72 at [87]
“‘your moral culpability may be lessened in that you were the subject of very strong emotions at the time of the killing but your psychiatric condition cannot be regarded as substantially exculpating you in a moral sense.’”
[6] (2007) 16 VR 269
71 I spent some time discussing with Mr Dean and also with the prosecutor whether or not there would be a reduction in your moral culpability.
72 Mr Dean relied upon Ms Lechner’s conclusion and diagnosis of depression, your background of complicated personal history and your issues in the past and in this instance with breakdowns in relationships as relevant to his submission for reduction.
73 Mr Pickering submitted on behalf of the prosecution there should not be any mitigation of your sentence on the basis of moral culpability. He referred to the variety of explanations you had given regarding how your offending had come about, which included a further explanation within the written correspondence from you.
74 In his submission your offending effectively occurred because you were “rebuffed” by Ms Knight, and as a result you returned to the house shortly thereafter with the weapon relevant to the charge of aggravated burglary and armed robbery. Then later again returning to the property again arming yourself.
75 Mr Pickering submitted that on the material before me there was at best a ‘nebulous link’ between your stress and this offending, other than caused by the breakup in your relationship in November 2016.
76 Mr Pickering submitted the report of Ms Lechner was deficient in a number of significant respects when assessing your moral culpability. He submitted that consistent with DPP v O’Neill[8], there was a lack of cogent evidence to lead me to conclude your sentence should be mitigated as a result of moral culpability.
[8] (2015) 47 VR 395
77 He submitted there was not a link between your stress and depression at the time, and ultimately the real reason for your offending was that you would “not take no for an answer”, and that would not lead to a reduction in your moral culpability.
78 Mr Pickering elaborated upon this in his sentencing submissions and urged the report of Ms Lechner carried little weight. That she arrived at her diagnoses after one video session interview of approximately 90 minutes and basically relied upon self-reporting questionnaires.
79 Whilst Ms Lechner, he urged, did provide various diagnoses, she was not clear as to the basis why she so concluded. He also referred to her lack of reference to the categories/sub-categories of depression contained within DSM-5, and which applied to you.
80 Turning to O’Neill, Mr Pickering submitted assessment of moral culpability required rigorous analysis. It does. Ultimately Ms Lechner’s diagnosis of depression was ‘general’ and with no analysis as to why she concluded a Major Depressive Disorder existed.
81 There was also, he urged, a lack of explanation by Ms Lechner as to why you would return again and again to the property and assault Owen.
82 Mr Dean in reply to Mr Pickering’s submission, submitted there should be some reduction in your moral culpability, given the level of your stress at the time and Ms Lechner’s report. That there were a number of matters he urged which would compound your problems with coping on that particular day.
83 He conceded regarding any mitigation of sentence from DPP vMeyers[9]:
“In our view there can only ever be very modest mitigation when a condition such as depression is said to have impaired the offender’s capacity to think clearly or make calm and rational choices.”
[9] [2014] VSCA 314
84 He urged that meant there should be some mitigation in your case.
85 I discussed this, as I said, at some length with both counsel. I do note you have never attended treatment to address your anger management issues which have clearly been a problem for you over many, many years, often within relationship issues, as evidenced by previous breaches of intervention orders.
86 I am concerned by the generality of Ms Lechner’s report, her lack of analysis regarding her conclusion you suffered from depression, and the information she relied upon, or not, when arriving at her conclusions. It is surprising to me that Ms Lechner did not apparently read your record of interview and attempt to assess your answers/explanations within, nor is it apparent she discussed with you your initial attendance at the house at which time you were effectively ‘rebuffed’.
87 Ultimately I do not consider, having taken into account all matters relevant to your offending and to you personally, that it is appropriate to mitigate your sentence relevant to moral culpability.
88 As I also discussed with counsel, there was lack of reference in your record of interview with police to you being initially ‘rejected’ by Ms Knight approximately an hour before you returned with the pick handle. You were then at the property for a relatively short time involving the offending encompassed in Charges 1, 2 and 3, then returning at approximately 4.14 am the next day armed with a steel bar. You explained your attendance as wanting to get a car to assist you to protect property you thought would be stolen from the boarding house where you were then living, although I note in your most recent correspondence your description that at the time of this offending was that you were homeless and living in the car. At your initial attendance you were not so concerned about your property as you wanted to sleep at the house.
89 I note also you have had various opportunities in the past for counselling and assistance via Court orders. You could also have attended of your own volition, as you did when attending Quinn House to address your drug issues.
90 I also discussed with both counsel the decision of Meyers, in particular paragraph 48, referrable to a number of concerning features present relevant to Charge 1, when I assess the gravity of that offending. Your intent at the point of entry was to steal, the mode of entry involved forcing the door. You carried a weapon. You were alone. The aggravated burglary took place at approximately 10.00 pm when you would have expected there would be people, including children at the property, bearing in mind you had also been there shortly before. Also relevant when assessing the gravity of this instance of aggravated burglary was that the victims were particularly frightened of you and in that regard I note the earlier intervention order against you in November 2016, with allegations of violent behaviour by you. I was told by Mr Dean you were going to be pleading guilty to threat to kill and unlawful assault regarding Ms Knight, with that plea to be heard on 8 August 2017 in the Magistrates’ Court. There are therefore very concerning aspects of that offending (Charge 1).
91 Your offending is not at the lower end of gravity, rather closer to mid-range of gravity.
92 There were two victim impact statements before me. One from Jennifer Knight, sworn 20 June 2017. She said any trust she and her children had in you was lost the moment you entered the back door with a pick handle and chased her son, who had Asperger’s. That you would have been aware that this type of event would traumatise Daniel more than an average child. She tried to keep you way from her son, but you managed to get to him. She described seeing her son looking at you, petrified, as you stood over him with a pick handle. She said she felt helpless. You had destroyed her love and trust in you.
93 Her son had not lived with her since your offending, as he was too traumatised to sleep in the house, and it upset her that he lived away from her.
94 She was unable to sleep in the house for the first five months, and now slept on a couch outside her daughter’s room. She had nightmares you were going to come and hurt her and take Sarah away.
95 She did not leave the house, because when she did she was anxious and had panic attacks. She did not feel good in the house, but she felt worse when she left it. Her daughter missed out on going outside and to the park, and she did not trust other people. She did not understand how you could have destroyed the family you and she had worked hard to build.
96 Her daughter was now scared of men.
97 Ms Knight also suffered financially, being unable to work with no one to look after her daughter. She also referred to you ruining her car, that she could not afford to fix it.
98 There was a victim impact statement from Daniel Knight, sworn 28 June 2017. At the time of this statement he was 14 years of age, but 13 when your offending occurred. He remembered you coming over to the house, fighting with his mother, and that he felt very anxious, so left the house because he did not want to be there. When he came home a few hours later you were still there. He saw you get angry, and you started chasing him. Daniel was really scared, and threw his speaker at you, hoping to make you stop.
99 You had a wooden plank in your hand, and threatened to hit him with it, and he thought you were going to hit him with it. He described Sarah as being upset, that he went to look after her, then called his auntie, staying with her and then with an uncle for some time after that.
100 For the first week or so after it happened he slept really badly, thinking about what had happened, and he was worried about his mother and Sarah.
101 He was angry with himself for not doing more. He felt safer after moving into his gran’s. He tried to go back to his mother’s house, but it did not work out because he did not feel safe. He was worried you might get one of your friends to come around and seek revenge.
102 He worried about the future, that you might come back.
103 He missed his mother lots and also missed Sarah, but did not want to live around Dandenong because of you. He did not feel safe. He would like his mother to move closer to ‘granny and grandpa’ so he could share time with them and his mother. It was difficult for his mother to visit, as you did not look after her car.
104 He was angry with himself, thinking he could have done more to scare you away. He was going to start to see a counsellor soon. He was doing better at school this year.
105 Also relevant is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of offending including DPP v Toomey[10], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[11], allowing of course for the very different factual circumstances in those cases from yours.
[10] (2006) VSCA 90
[11] (2003) VSCA 109, [17-18]
106 Mr Dean conceded the Victim Impact Statements indicated there had been ongoing adverse sequelae of your offending upon both Daniel and Ms Knight.
107 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am however conscious that I must not allow the effects upon a victim to swamp the sentencing process.
108 Turning to sentence, Mr Dean conceded a combination disposition of a term of imprisonment and a Community Correction Order was outside the range of appropriate dispositions. I agree. Ultimately he conceded a term of imprisonment was the appropriate disposition.
109 Mr Pickering further addressed me regarding Meyers, noting the concern expressed by the Court regarding the prevalence of offending in domestic situations (paragraph 3), also referring to paragraphs 28, 42, 45, 46, 75 and 78, noting in paragraph 78 it had not been advanced in your case that your time in prison would be more burdensome for you than for any other prisoner.
110 He also referred to the need for specific deterrence, given your history of previous violence and history of previous intervention orders you had breached. He also referred to your offending involving two occasions attending at the property with weapons.
111 He submitted that the need for general deterrence was of particular importance when sentencing.
112 Mr Dean drew my attention to the principle of totality when sentencing for the aggravated burglary, armed robbery and theft as they all breached the Intervention Order, and as such there was a level of overlap between the Interim Intervention Order and that offending. Regarding the second Interim Intervention Order, and the offence of common law assault, there was no overlap with the Intervention Order, as Owen was not an AFM on the Order.
113 Regarding your rehabilitation prospects, I have concerns. You obviously need to address issues such as breakups in your relationships and how to manage your anger when things do not go the way you want or expect. At this stage, there is limited comfort given to me in the report of Ms Lechner regarding your rehabilitation prospects. You are currently assessed as moderate/high risk of violent offending and as yet to date you had not completed any courses that relate to that issue.
114 When sentencing you I must, however, seek to maximise your chances of rehabilitation as they may be.
115 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. There is also the need for specific deterrence when sentencing you, given your extensive and relevant prior criminal history.
116 I must also consider the question of protection of the members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me. In light of the observations made by Ms Lechner I remain concerned of this, however, as she noted, the more treatment and courses you undertake, hopefully that need to protect the community from you will be further reduced, particularly those involved in intimate relationships with you.
117 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
118 When sentencing you, I take into account the principles of totality and proportionality.
119 I sentence you as follows.
120 On Charge 1, you are convicted and sentenced to 4 years’ imprisonment.
121 On Charge 2, convicted and sentenced to 2 years’ imprisonment.
122 On Charge 3, convicted and sentenced to 12 months’ imprisonment.
123 On Charge 4, convicted and sentenced to 8 months’ imprisonment.
124 On Summary Charge 5, convicted and sentenced to 3 months’ imprisonment.
125 On Summary Charge 9, convicted and sentenced to 5 months’ imprisonment.
126 On Summary Charge 10, convicted and sentenced to 1 month’s imprisonment.
127 I direct the following in relation to cumulation and concurrency.
128 Charge 1 is the base sentence.
129 I direct that 6 months of Charge 2 be served cumulatively upon Charge 1.
130 I direct that 5 months of Charge 3 be served cumulatively upon Charge 1.
131 I direct that 4 months of Charge 4 be served cumulatively upon Charge 1.
132 I direct that 1 month of Summary Charge 5 be served cumulatively upon Charge 1.
133 I direct that 2 months of Summary Charge 9 be served cumulatively upon Charge 1.
134 I direct that 14 days of Summary Charge 10 be served cumulatively upon Charge 1.
135 For clarity the orders for cumulation are upon each other and upon the base sentence.
136 That results in a total effective sentence of 5 years, 6 months and 14 days’ imprisonment and I direct that you serve a period of 3 years and 6 months before you are eligible for parole.
137 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of all these charges following jury verdict, I would have sentenced you to a term of imprisonment of 8 years and 6 months and set a non-parole period of 6 years.
138 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 213 days in custody, up to and including 27 July 2017 and I direct that that be entered into the records of the Court.
139 Pursuant to s.89(4) Sentencing Act 1991, I also cancel and disqualify you from obtaining a licence for a period of 4 years from today's date.
140 In determining the appropriate length of that cancellation and disqualification, I am mindful of rehabilitation and the decision of R v Lefebure[12].
[12] (2000) 31 MVR 131
141 The prosecution also made application for a disposal order in relation to the wooden pick handle and the metal bar. That was not opposed by counsel on your behalf and I make the order in the terms sought.
142 Any other orders?
143 MR PICKERING: No, Your Honour.
144 HER HONOUR: Right, now we will just go over the maths. Does all of that work out? Does anyone want me to read the figures again?
145 MR DEAN: Yes, Your Honour, I am just calculating.
146 HER HONOUR: Yes, you do that. How is the maths?
147 MR DEAN: Fine, Your Honour.
148 HER HONOUR: I am not asking if you are happy with the figures. I am just asking do you need me to repeat them.
149 MR DEAN: No, I have got them, Your Honour.
150 HER HONOUR: Excellent, good. PSD, was that right, up to and including yesterday?
151 MR PICKERING: Yes, Your Honour.
152 MR DEAN: Yes, Your Honour.
153 HER HONOUR: All right, well I confirm that under s.18(4) that that be entered into the records of the court, which I think I said was 213 days up to and including yesterday, 27 July. Four year licence is from today's date of sentence. I should also indicate, just in relation to Ms Lechner's report, you will recall I referred to her report 7 July 16. That is in fact the date of the report, but the examination was April 2017. So I think it is a typo on her part. It seems to me the report was 7 July 2017. Maybe we had not picked up on that before, but anyway, that will come down. So it will reflect 16 but there is a bit of an explanation of it at the end of this sentence in case anyone is concerned or does not understand it.
154 All the orders have been signed. Anything further, no?
155 MR PICKERING: No, Your Honour.
156 MR DEAN: No, Your Honour.
157 HER HONOUR: All right, well thank you both for your assistance. Thanks very much, Mr Hess, if you would not mind, thank you. Your counsel will come down and see you. Thank you very much. Thank you both.
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