Director of Public Prosecutions v Higgins
[2023] VCC 512
•4 April 2023
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON DELIVERED AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00724
Indictment No. M12022814
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN HIGGINS |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2023 | |
DATE OF SENTENCE: | 4 April 2023 | |
CASE MAY BE CITED AS: | DPP v Higgins | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 512 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Sentence – Aggravated burglary – Causing Injury Intentionally – Contravention of order intending to cause harm or fear for safety – Victim known to the offender – Breaking into home after assault commenced outside – Lower mid-range offending – Early plea of guilty – Genuine remorse – Substance abuse – Social disadvantage during childhood – Positive prospects of rehabilitation
Legislation Cited:
Cases Cited:Hogarth v The Queen (2012) 37 VR 658 – DPP v Meyers (2014) 44 VR 486 – R v Lacey [2006] VSCA 4 – Marrah v The Queen [2014] VSCA 119 – Barbaro v The Queen (2012) 226 A Crim R 354 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – DPP v Zhuang (2015) 250 A Crim R 282 – DPP (Cth) v Thomas (2016) 53 VR 546 – Boulton v The Queen (2014) 46 VR 308
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D R Cordy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C Hooper | Victoria Legal Aid |
HIS HONOUR:
1Jordan Higgins, you have pleaded guilty to an indictment containing one charge of aggravated burglary (Charge 1),[1] one charge of causing injury intentionally (Charge 2)[2] and one charge of contravention of order intending to cause harm or fear for safety (Charge 3).[3]
[1] Contrary to Crimes Act 1958 s 77.
[2] Contrary to Crimes Act 1958 s 18.
[3] Contrary to Family Violence Protection Act 2008 s 123A(2).
2The maximum penalty for aggravated burglary is 25 years’ imprisonment.[4] The maximum penalty for causing injury intentionally is 10 years’ imprisonment.[5] The maximum penalty for contravention of order intending to cause harm or fear for safety is 5 years’ imprisonment and/or 600 penalty units.[6]
[4] Pursuant to Crimes Act 1958 s 77.
[5] Pursuant to Crimes Act 1958 s 18.
[6] Pursuant to Family Violence Protection Act 2008 s 123A(2).
The Facts
3The prosecution filed a Summary of Prosecution Opening for Plea dated 16 December 2022,[7] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[7] Exhibit (‘Ex’) P1.
Background
4At the time of committing these offences, you were 27 years of age and resided at the Mooroopna Backpackers Hostel in Mooroopna. You were previously in a relationship with Ms Buovac, with whom you share four children.
5On 27 August 2021, the Shepparton Magistrates’ Court issued a family violence intervention order against you and the contents of that order were explained to you. Under that order, you are prohibited from committing family violence against the protected person, Ms Buovac.
6In the months prior to the offence, from about March 2021, you became aware that Ms Buovac had been spending time with another man, namely Mr Gagliardi. You knew Mr Gagliardi as you had previously worked together.
Events leading up to the offence
7On or around 17 September 2021, you and Mr Gagliardi exchanged messages on Facebook. You asked to meet with Mr Gagliardi for what he understood to be a fight. Mr Gagliardi made it clear to you that he was not interested.
8At approximately 6.45 pm on 24 September 2021, Ms Buovac received a telephone call from you. You asked her for Mr Gagliardi’s home address and said words to the effect: ‘I want to have a word with him, I want to sort him out’. You sounded angry over the phone and told Ms Buovac that she would ‘never see [her] children again’.
The offending
9At approximately 8.45 pm that night, Mr Gagliardi and Ms Buovac were living in Mr Gagliardi’s home. Ms Buovac heard a brick come through the window and heard you yelling out Mr Gagliardi’s name. Ms Buovac and Mr Gagliardi heard the sound of the glass front door being kicked in by you or someone you were complicit with.
10Mr Gagliardi opened the door, stepped outside and saw you and three other men that he did not recognise. You were standing directly in front him and proceeded to punch him to the head. The other men also hit Mr Gagliardi to the head. While you continued to punch Mr Gagliardi, he fought back in self-defence and almost pushed you to the ground.
11To escape you and the three men, Mr Gagliardi ran inside the house. You followed Mr Gagliardi inside the house, without his permission to enter. You entered with the intention of assaulting Mr Gagliardi.
12Once inside the house, you grabbed Mr Gagliardi and struck him to the back of the head. He fell to the ground and you repeatedly kicked him whilst he was on the ground. You left the house leaving Mr Gagliardi on the ground. Ms Buovac then rang 000.
Police attendance and investigation
13Police arrived at Mr Gagliardi’s house at 8.45 pm. He was seen to have bruising to his right eye and on the right side of his head, as well as a bloody nose. He was transported by ambulance to Goulbourn Valley Health where he was examined and was found to have suffered blunt force trauma to the face causing a displaced nasal bone fracture. He had the following injuries resulting from the assault:
a. scratch marks on the right side of his chest;
b. bruising around his left eye, with no visual disturbance;
c. blood in both nostrils;
d. swelling of the nasal bridge bone; and
e. a bruise behind his right ear.
14On 25 September 2021, police attended the crime scene where they located two latent fingerprints on a sliding glass door which were later identified as belonging to you.
15You were arrested that night, at approximately 8.00 pm, and made a ‘no comment’ record of interview as was your right.
16In all the circumstances, I assess your moral culpability as being moderately high. Nonetheless, I accept Dr Cunningham’s assessment that the cause of your offending conduct was that you continued to be fixated on your belief that your partner had been unfaithful and the victim was the biological father of some of your children. Dr Cunningham considers, this belief was a ‘significant trigger’ for you. This, coupled with your discovery, at the age of sixteen, that your father was not your biological father, caused you significant distress as you did not want the same for your children.[8] However, the fact your ‘drug abuse was the main precipitator of [your] offending’[9] is very concerning.
[8] See Confidential Psychological Assessment dated 20 December 2020 (Ex 7) p 2.
[9] Ibid.
Victim Impact
17Ms Buovac and Mr Gagliardi did not prepare victim impact statements and no medical reports regarding Mr Gagliardi’s current situation have been provided to the Court.
18Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[10]
[10] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
19The victims would have suffered considerable distress and anxiety as a result of your conduct. Mr Gagliardi and Ms Buovac each had a right to feel safe in their home and the incident would have been a terrifying experience for them both, particularly as you contravened the family violence intervention order that Ms Buovac had placed against you.
Offence Seriousness
20Aggravated burglary is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence. Your counsel accepted the seriousness of your offending conduct.
21In the Victorian Court of Appeal case of Hogarth v The Queen[11] (‘Hogarth’), a case involving a ‘confrontational’ aggravated burglary, the Court said that: ‘Home invasion is a particularly nasty form of criminal conduct’[12] and a particularly ‘egregious form of aggravated burglary’.[13] This is particularly so, it was said, where, as here, the offence is committed at night.[14]
[11] (2012) 37 VR 658 (‘Hogarth’).
[12] Ibid 659 [1] (Maxwell P, Neave JA and Coghlan AJA).
[13] Ibid 660 [6].
[14] DPP v Brown (2004) 10 VR 328, 336 [43] (Vincent JA) cited in Hogarth 667 [34].
22I accept that in your case I am not sentencing you for a ‘confrontational aggravated burglary’ in the Hogarth sense, as the confrontation commenced outside the premises and extended into them. Nonetheless, as I earlier observed, the invasion of Mr Gagliardi’s home must have been a terrifying experience for him and Ms Buovac.
23In DPP v Meyers[15] (‘Meyers’) the Victorian Court of Appeal outlined a number of relevant considerations that apply in determining the assessment of the relative seriousness of the offence. Those considerations include the offender’s intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened beforehand.[16] As I expressed at the plea hearing, in line with the judgment in Meyers, I must also take care to ensure you are not doubly punished for offences committed after your entry into the home.
[15] (2014) 44 VR 486 (‘Meyers’).
[16] Ibid 498 [47]–[49] (Maxwell P, Redlich and Osborne JJA).
24Your plea to the indictment acknowledges you intended, at the time of entry, both to trespass and to commit an assault on Mr Gagliardi inside his home. The fact you were accompanied by three others is an aggravating circumstance. Moreover, entry to the home was forced, if not by you, then by someone with whom you were complicit. I accept you were not armed and, while the offences occurred in the early evening, they were not committed during the early hours, when the victims would be expected to be in bed asleep.
25At the plea, there was discussion relating to whether the aggravated burglary was incidental to the assault that occurred outside of Mr Gagliardi’s home. Your counsel submitted that there was no discontinuation of the assault and in the event there was any break in the assaultive conduct, it was only momentary.
26Your counsel submitted that it not clear that you were the person who broke the window and door of the home and that you spontaneously entered the home only because the decision to go inside was driven by Mr Gagliardi. You only followed Mr Gagliardi into the house to continue the assault that had already commenced outside.
27Your counsel submitted that if your primary intention had been to enter the house for the purposes of an assault, you would have done so immediately as opposed to waiting outside.
28I accept that you first assaulted Mr Gagliardi once he stepped out of the house, and the conduct merely continued once you were inside.
29However, your counsel accepted the summary of the facts tendered by the prosecution at plea.[17] Following the agreed facts, your behaviour leading up to the assault and prior to Mr Gagliardi becoming aware of your presence included you, or someone you were complicit with, kicking in the door of the home. This behaviour suggests that you arrived at Mr Gagliardi’s home with the intention of entering to confront him. Further, after the initial altercation outside, you still made the conscious decision to enter the home when you could have stopped. You entered the home to cause Mr Gagliardi further harm.
[17] Ex P1.
30In relation to Charge 3, as I previously said, there was a family violence intervention order in place to provide Ms Buovac with protection and security. You contravened the conditions of this order because you not only attended Mr Gagliardi’s home and assaulted him whilst in Ms Buovac’s presence, but you also foreshadowed the assault by calling her and threatening her children. The effect of your offending would have caused Ms Buovac significant stress, anxiety and fear for her safety.
31I do accept, however, that there was no physical violence directed by you towards Ms Buovac.
32I must be particularly careful in this case not to doubly punish you for elements which are common to more than one offence[18] or to treat a charged offence as an aggravating circumstance of another charged offence. As Vincent JA opined in R v Lacey:
It is, of course, well recognised that although it is sometimes extremely difficult to separate the bases of punishment in situations where a number of offences are committed within the ambit of a single incident or enterprise, the sentencing judge must endeavour to do so and address the issue of possible overlapping by moderating the individual sentences and the making of orders for concurrency.[19]
[18] See eg Hutchinson v The Queen 92021] VSCA 235 [76]–[77] (Kyrou, Emerton and Sifris JJA); Salvaggio v The Queen [2022] VSCA 88.
[19] [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
33All things considered, I assess your offending conduct in relation to the charge of aggravated burglary to be in the lower mid-range for offences of this type.
Personal Circumstances
34You were assessed on 13 December 2022 by Aaron Cunningham, a psychologist engaged by your legal representatives. Mr Cunningham prepared a ‘Psychological Assessment Report’, dated 20 December 2022, which was tendered at the plea hearing by your counsel.[20] Mr Cunningham previously prepared a ‘Psychological Assessment Report’, dated 23 May 2021, in relation to other offences, which was also tendered at the plea hearing by your counsel.[21]
[20] Ex D7.
[21] Ex D2.
35You were born in November 1993 and are currently 29 years of age. You are the youngest of two children. You were raised in Shepparton by your mother and stepfather. You visited your father every second weekend, describing him to Mr Cunningham as ‘supportive’ and ‘disciplined’. At your mother’s home, you felt there was a lack of rules and structure. You recalled to Mr Cunningham that your mother and stepfather would often drink alcohol and there were times where you saw your mother being assaulted, beaten and with cuts on her face.
36You told Mr Cunningham that at the age of sixteen you discovered that the man you believed to be your father was not your biological father. You said this has caused you significant distress and you did not want this for your children. This experience has been a significant trigger for you and has contributed to your fixation on the victim and the belief that your ex-partner had been unfaithful. You also believed that the victim was the biological father of some of your children.
Education and employment history
37You completed primary school and attended secondary school up until Year 10. You left secondary school because of your anxiety and frequent truancy. You did not undertake further studies.
38Prior to discovering the truth about your biological father you worked with your mother as a house painter. You then worked for several years at a rural farming store before experiencing short term periods of other employment. You later returned to the farming store when you were seventeen or eighteen years old, but your employment was subsequently terminated.
39For four years you worked at an abattoir, a job in which you experienced difficulty. You then worked with your father for two years. It was at this time that you began using methylamphetamine and took time away from work.
40You have been unemployed since August 2020, and at the time of the offending you were receiving Newstart payments from Centrelink. While in custody you have been working in the prison timber yard.
Substance abuse
41You disclosed a history of drug abuse to Mr Cunningham. You reported that you began smoking cannabis at age fourteen. This use became regular when you turned sixteen. Due to your escalating anxiety you stopped smoking cannabis for four to five years, unless you were in social situations. You told Mr Cunningham that you were next addicted to methylamphetamine, which you began using around the age of twenty-four.
42Mr Cunningham reports that your drug dependency is ongoing. You attempted to abstain from drug abuse and your counsel said you have sought treatment on several occasions, including via Odyssey House. I have had regard to the letter from Odyssey House, dated 28 April 2022,[22] and note that you were accepted into their Circuit Breaker program. According to the contravention report from Corrections Victoria, dated 7 July 2022,[23] you commenced the Circuit Breaker program on 28 June 2021 but chose to leave on 14 July 2021 as you were unable to manage the treatment plan and rules the facility implemented.
[22] Ex D9.
[23] Ex D8.
43You relapsed around the time the present offending occurred and your drug dependency heightened the anger you felt towards your partner and her perceived betrayal of you with the victim.
44Since the offending, you informed Mr Cunningham of your willingness to address your drug habit in the community.
45I note you have returned two negative random urine drug screens whilst in custody.[24]
[24] Ex D5 on 30 June 2022 and 30 October 2022.
Mental health
46You reported to Mr Cunningham feeling stressed, particularly due to the limited time you have been able to spend with your children via video link whilst in custody. However, you did not present to Mr Cunningham with signs of mental illness. You also told Mr Cunningham that you have been receiving a buprenorphine injection which has been reducing your anxiousness.
47You acknowledged to Mr Cunningham that your behaviour has been inappropriate and that it would be beneficial for you to move on from your ex-partner in order to focus on your children’s wellbeing. To this end, you told the corrections officer who assessed you for suitability for a Community Correction Order (‘CCO’), that you plan to reside with your current partner, Michelle, in Mooroopna upon your release from custody.
48In light of Mr Cunningham’s opinion, I find you are not suffering from any mental illness or other condition which would engage Verdins’ principles.[25] Your counsel did not submit otherwise.
[25] R v Verdins (2007) 16 VR 269.
Prior Criminal History
49You have a significant enough prior criminal history dating back to 12 December 2016 where you were fined $1000, without conviction, for assault with weapon.
50Since then you have committed a number of dishonesty and property offences, including attempted armed robbery, intentionally damage property, wilfully damage property, criminal damage with the intent to damage or destroy and deal with property suspected of being proceeds of crime.
51Additionally, you have been convicted of offences including the persistent contravention of a family violence intervention order, contravention of both interim and final family violence orders, contravention of a family violence order with the intention to cause harm or fear, aggravated assault of a female and unlawful assault.
52The remainder of your prior criminal history includes failing an oral fluid test within three hours of driving, committing an indictable offence whilst on bail, failing to attend counselling in contravention of an order and breaching alcohol interlock condition.
53The offending against Mr Gagliardi occurred shortly after you were last dealt with in the Shepparton Magistrates’ Court on 27 August 2021.
54Two Community Corrections Orders (‘CCO’) have previously been imposed on you. The first CCO was ordered for three years in conjunction with six months’ imprisonment reckoned as time served, after you were convicted of attempted armed robbery. You were sentenced to a 24-month CCO on 27 August 2021. Your counsel is of the opinion that you were engaging well with the terms of the CCO before your relapse into the abyss of drug abuse. Breach proceedings in respect of the CCO is currently pending.
55You have been assessed by the community corrections officer who prepared a Community Correction Order Assessment Outcome Report, dated 3 April 2023,[26] for the Court as having a high risk of reoffending according to the Level of Service Risk Assessment Tool.
[26] Ex C1.
56Given your prior criminal history and risk of reoffending, specific deterrence and protection of the community are significant sentencing considerations in your case.
Mitigating Circumstances
57You pleaded guilty to the present charges on 14 October 2022 following negotiations between the prosecution and your legal representatives which, following a case conference before a judge of this Court, eventually led to the prosecution dropping a charge of home invasion.[27] Accordingly, whilst yours is not the earliest plea, it is nonetheless a forensically early plea.[28] I take this into account in your favour.
[27] Contrary to s 77A of the Crimes Act 1958.
[28] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
58Your plea has utilitarian benefit, particularly in the COVID-19 environment,[29] and you have saved the victims the trauma of giving evidence in this Court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[29] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
59You were arrested for these offences on 25 September 2021 and you have remained in custody since that time, some 556 days.[30] Much of this time has been spent in COVID-19 conditions, this has meant the time you have spent in custody to date has been more onerous on you than it otherwise would have been.[31] I also accept you will experience a greater level of custodial hardship as a result of COVID‑19 restrictions which apply to all prisoners in this State for the foreseeable future.
[30] Equivalent to 18 months and 10 days.
[31] See eg The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
60You have significant drug dependency and reported that you had relapsed around the time of this offending. In your counsel’s written submissions, it was submitted that you were intoxicated when the offending occurred. I accept the use by you of illicit drugs played a considerable role in the lead-up to the offending and enhanced the anger you felt about what you perceived to be a betrayal by your ex-partner with the victim. Whilst this does not excuse your appalling conduct, it does provide some explanation.
61I also accept that your background of social disadvantage during childhood is a mitigating circumstance in your case. In Marrah v The Queen[32] the Victorian Court of Appeal said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[33]
[32] [2014] VSCA 119.
[33] Ibid [16] (Redlich and Tate JJA) (citations omitted) (emphasis original). See also Dhal v The Queen [2020] VSCA 90 [77] (Croucher AJA, Emerton JA agreeing).
62As noted earlier, your early years were marked by the separation of your parents, confusion concerning your biological father’s identity, and the awareness that your mother had experienced family violence. Your teenage years were marked by disengagement with education, substance use and inconsistent employment.
63Material was placed before me regarding the efforts you have made towards your rehabilitation. Prior to being remanded in custody on the present matters, your initial engagement with your CCO was positive. Corrections Victoria confirmed your random urine drug screens were all negative to illicit substances, you accrued zero unacceptable absences and you were motivated to utilise therapeutic opportunities.[34]
[34] Ex D8.
64Whilst remanded in custody for these offences,[35] you have made several positive efforts at rehabilitation. You have successfully completed a number of programs including:
a. The nine-hour program ‘Healthy Body and Mind Program’ which focused on strategies for physical and mental wellbeing, regulating emotions and building self-awareness;
b. The six-hour ‘Alcohol and Me Program’ which focused on problematic alcohol abuse, harm minimisation and relapse prevention; and
c. The six-hour ‘Cannabis and Me Program’ which focused on the advantages and disadvantages of cannabis use, as well as harm minimisation and relapse prevention.
[35] Ex D4.
65You have also completed subjects forming part of a Certificate I in General Education for Adults, a Certificate III in Civil Construction, and a Civil Construction Skill Program.
Genuine Remorse
66I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
67According to Barbaro v The Queen,[36] the offender must satisfy to the court that there is ‘genuine penitence and contrition and a desire to atone’.[37] True remorse is a question of fact and is determined on the balance of probabilities.[38] In many cases the most compelling evidence of remorse comes from offender’s testimony.[39]
[36] (2012) 226 A Crim R 354 (‘Barbaro’).
[37] Barbaro 365 [38].
[38] R v Cooper (1998) 103 A Crim R 51, 55; R v Gillick [2000] VSCA 127 [20].
[39] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44].
68In CD v The Queen,[40] Harper JA quoted his earlier observations in Phillips v The Queen[41] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[42]
[40] [2013] VSCA 95 [36] (‘CD’).
[41] (2012) 37 VR 594, 621 [101].
[42] Ibid [97]–[101].
69I have had regard to the letter you wrote to the Court that was tendered at the plea hearing.[43] You write that you have had time in custody to assess the aspects of your life that you would need to change in order to be a responsible person in the community and recognise that your offending can be partially attributed to your drug abuse and lack of positive guidance.
[43] Ex D6.
70In custody you have continued to liaise with your doctor to treat your anxiety and you now feel as though this condition is manageable. You admit you have faced difficulties when trying to separate from your ex-partner, but feel as though those problems have been resolved as you have been able to have time away from your ex-partner whilst in custody. You outlined that you now have a positive relationship with both of your parents, even while in custody, and you are grateful for their support. You also write that you have continued to keep in contact with your children, although it has been challenging to do so in the online environment.
71Importantly, your letter acknowledges that your conduct infringed the victims’ right to feel safe in their own home and you expressed feelings of sadness that you had impacted their life in this way. You write that you not only understand the seriousness of your offending, but that you are sorry and regretful for what you have done.
72The contents of your contrite and insightful letter have moved me to accept there is sufficient evidence before me to make a finding in your favour that you demonstrate genuine contrition and remorse for your offending conduct and an appreciation of its wrongfulness.[44] You also demonstrate insight into the reasons behind your offending conduct, victim empathy, and, through your rehabilitative efforts whilst in custody, a preparedness to address your problems in a meaningful manner in the future.
[44] See Barbaro 364–65 [32]–[38] (Maxwell P, Harper JA and T Forrest AJA); R v Kumar (2002) 5 VR 193, 225–26 [139]–[140] (Eames JA); Koch v The Queen [2011] VSCA 435, [52], [55] (Maxwell P, Buchanan and Neave JJA agreeing); Delich v The Queen [2014] VSCA 66, [41]–[43] (Nettle, Neave JJA and Sifris AJA).
73For these reasons, I am satisfied there is an increased likelihood of your ultimate complete rehabilitation,[45] and specific deterrence needs be given less weight in my sentencing synthesis.[46]
[45] CD [36] quoting Phillips [97]–[101] (Harper JA).
[46] Barbaro 365 [39] (Maxwell P, Harper JA and T Forrest AJA); CD [36]–[37], [43] (Harper JA).
74I assess your prospects of rehabilitation as being very positive. Nonetheless, as your counsel and Mr Cunningham both observed, much will depend on your ability to remain abstinent from illicit drug use upon your release from custody, where you have been in a controlled environment.
Application of Sentencing Principles
75I have had regard to current sentencing practice in relation to the present charges as informed by the decisions of the High Court of Australia in R v Kilic[47] and DPP (Vic) v Dalgliesh (a Pseudonym)[48] and the Victorian Court of Appeal decisions in DPP v Zhuang[49] and DPP (Cth) v Thomas.[50]
[47] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[48] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[49] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA).
[50] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
76While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentences in your case.[51]
[51] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
77Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
78The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances.
79I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
80Denunciation, general deterrence and just punishment, sensibly moderated by reason of the matters I have previously referred to, must nonetheless be given weight in sentencing you for these offences. Moreover, I consider some weight needs to be given to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and the risk of your reoffending, especially if you return to the abuse of illicit drugs upon your release from custody. As I previously said, as I find you are genuinely remorseful, I assess your prospects for rehabilitation as being very positive, so long as you continue to receive support and you remain drug free in the community.
81The parsimony principle requires I not impose sentences that involve your confinement unless I consider the purpose or purposes for which these sentences are imposed cannot be achieved by sentences that do not involve your confinement. Clearly, your offending requires the imposition of sentences of imprisonment. Your counsel appropriately conceded this was the case.[52]
[52] See Sentencing Act (‘SA’) s 5(4).
82As the Victorian Court of Appeal observed in Boulton v The Queen:[53]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[54]
[53] (2014) 46 VR 308.
[54] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
83After balancing all relevant sentencing considerations in your case, I consider that you may be turning a corner in your life and that a relatively lenient sentence imposed at this stage may lead to your eventual reformation.[55] I consider a combination sentence involving a term of imprisonment together with a CCO is the appropriate disposition in this case.
[55] See R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ, White J agreeing) approved in Markovic v The Queen (2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
Mr Higgins
On the charge of aggravated burglary (Charge 1) you are convicted and sentenced to 16 months’ imprisonment.
On the charge of causing injury intentionally to Mr Gagliardi (Charge 2) you are convicted and sentenced to 4 months’ imprisonment.
On the charge of contravention of order intending to cause harm or fear for safety (Charge 3) you are convicted and sentenced to 3 months’ imprisonment.
I direct that 2 months of the sentence imposed on Charge 2 and 21 days of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on each other.
This makes a total effective sentence of imprisonment for 18 months and 21 days.
I further order on all charges[56] you serve a community correction order for three years commencing on your release from custody with the following program and treatment conditions:
[56] See SA s 40(1).
Under the Sentencing Act 1991 (‘Sentencing Act’) s 48C you are to perform 300 hours of unpaid community work over three years.
Under Sentencing Act s 48CA I determine up to 100 hours satisfactorily completed under the treatment and rehabilitation conditions of the order are to be counted as hours of unpaid community work.
Under Sentencing Act s 48D(3)(a) any assessment and treatment (including testing) for drug abuse or dependency.
Under Sentencing Act s 48D(3)(b) any assessment and treatment (including testing) for alcohol abuse or dependency.
Under Sentencing Act s 48D(3)(e) any mental health assessment and treatment.
Under Sentencing Act s 48D(3)(f) any program that addresses factors related to your offending behaviour.
Under Sentencing Act s 48D(3)(g) you are to successfully compete a Men’s Behaviour Change Program and an Anger Management Program.
Under Sentencing Act s 48E you be under supervision for three years.
Under Sentencing Act s 48K I impose a judicial monitoring condition. A judicial monitoring hearing will be conducted in Melbourne on 4 October 2023 at 9.30 am. You may appear remotely at that hearing.
I declare that pre-sentence detention in your case is 556 days (not including this day) and I direct that declaration be entered into the records of the Court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years’ imprisonment with a minimum non-parole period of two years.
0
44
0