Director of Public Prosecutions v Hilton-Taylor
[2020] VCC 105
•19 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRISON HILTON-TAYLOR |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2019 and 31 January 2020 | |
DATE OF SENTENCE: | 19 February 2020 | |
CASE MAY BE CITED AS: | DPP v Hilton-Taylor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 105 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of aggravated burglary, damaging property and contravening a Family Violence Intervention Order intending to cause harm or fear – offender aged 22 at time of offending and had been released from 106 days in custody five days previously and was on a Community Correction Order – significant history of violent and dishonest offending including breach of three earlier Community Correction Orders and four Family Violence Intervention Orders, as well as undertakings of bail – history of anti-social behaviour – drug abuse with possible associated episodes of psychotic symptoms – diagnosis of anti-social personality disorder and poly-substance abuse disorder – behavioural problems resulting in a significant period on remand being spent in a management unit – potential risk of offender becoming institutionalised.
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 6 months. s6AAA statement: 5 years’ imprisonment with a non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Brown appeared on 30 September 2019 and Ms K Webster appeared on 31 January 2020 | Solicitor for Public Prosecutions |
| For the Offender | Ms S Joosten appeared on 30 September 2019 and Ms J Hession appeared on 31 January 2020 | Victoria Legal Aid |
HER HONOUR:
1 Harrison Hilton-Taylor, you have pleaded guilty to one charge of attempted aggravated burglary, which carries a maximum penalty of 20 years’ imprisonment; one charge of damaging property, which carries a maximum penalty of 10 years’ imprisonment; and one charge of contravening an order intending to cause harm or fear, which carries a maximum penalty of five years’ imprisonment.
2 The circumstances of your offending are outlined in the Summary of Prosecution Opening, Exhibit “A”. The background to your offending is that, at an earlier time, you had been in a relationship with your victim, a young woman aged 22 years at the time of this offending. This relationship had broken up 18 months prior to 11 March 2019 and you had not seen each other since. You had offended against this young woman in September 2017 by unlawfully assaulting her and wilfully damaging her car. Subsequently, on 26 September 2017, an Intervention Order was taken out, naming her as the protected person. This had been served upon you on 12 October 2017 and the conditions of the order had been explained to you in full.
3 On 11 March 2019 at approximately 9.50pm, your victim was in her bedroom at the home where she lived with her family when she heard banging at her window. She also heard screaming by a male voice, which she recognised as belonging to you. The Intervention Order prevented you from being within 200 metres of her residence. This is the conduct which forms the basis of Charge 3, contravention of an Intervention Order.
4 You smashed two panels of your victim’s bedroom window, such that glass shattered into the room. This is the basis for Charge 2, criminal damage.
5 After you smashed the windows, your victim ran out of her bedroom, screaming, towards the front door. There she found you trying to force yourself inside through the security door. This is the basis of Charge 1, attempted aggravated burglary. Your victim’s mother ran to the front door and assisted her in making sure the security door remained closed and by locking the wooden front door. One of your victim’s younger sisters and, also, her mother, called ‘000’. You continued to beat on the security door for about five minutes, yelling “Where is he?” and “Who’s that fucking Greek dog?” The latter was apparently a derogatory reference to a young man whom you believed to be the boyfriend of your victim. You also kicked the door a number of times.
6 The police arrived and located you a short distance down the road from your victim’s house. There was a trail of blood from the front doorstep of your victim’s house to where you were found. Your right hand was bleeding extensively. You were taken to the Austin Hospital in order for your hand to be treated.
7 When interviewed by police, you denied the offending. Your answers to police questions were disrespectful, riddled with swearing, and generally of a high‑handed and arrogant nature. However, following the committal mention on 9 July 2019, you indicated an intention to plead guilty and the matter proceeded by way of straight hand-up brief.
8 You are presently aged 23 years, having been born on 5 September 1996. You come before the Court with a concerning criminal history:
· On 7 September 2015, you were convicted at Heidelberg Magistrates’ Court of failing to answer bail; contravening a condition of bail; contravening a Family Violence Intervention Order relating to your sister and your mother, who were the protected persons; theft from a shop; intentionally causing injury; committing an indictable offence whilst on bail; unlicensed driving; burglary; resisting a police officer; wilfully damaging property; unlawful assault; recklessly causing injury; theft of a motor vehicle; and using a drug of dependence. You were ordered to undertake a Community Correction Order for a period of 12 months and to undergo assessment and treatment. That order was subsequently breached by you.
· On 30 October 2017, you were convicted at Latrobe Valley Magistrates’ Court of criminal damage; failing to answer bail; making a threat to kill; contravening a Family Violence Intervention Order, which related to your brother, who was the protected person; robbery; unlawful assault; careless driving; being a learner driver without an experienced driver; failing to report an accident to police when the owner was not present; and committing an indictable offence whilst on bail. You were also convicted of other charges of failing to answer bail, contravening a condition of bail, theft, intentionally causing injury, unlicensed driving, burglary, committing an indictable offence whilst on bail, resisting a police officer, recklessly causing injury and theft of a motor vehicle.
On the same date, you were convicted of charges of wilfully damaging the car of, and unlawfully assaulting the young woman who is your victim in the offending for which I must sentence you. This was conduct which had resulted in her taking out the previously mentioned Intervention Order on 26 September 2017. You were ordered to undertake a Community Correction Order for a period of 12 months, with conditions of unpaid community work, supervision and treatment, rehabilitation conditions relating to drug and alcohol abuse, and mental health conditions. This Community Correction Order was breached by you.
On the same date, you were found to have breached the Community Correction Order which had been given to you on 7 September 2015.
· On 31 July 2018, at Latrobe Valley Magistrates’ Court, without conviction, you were fined an aggregate of $1,000 for acting in a disruptive manner in a police gaol and acting to the prejudice and order and good management of the gaol.
· On 7 March 2019, at Heidelberg Magistrates’ Court, you were convicted of unlawful assault of your sister, driving a vehicle whilst exceeding the prescribed content of drugs (which is nil), various other driving offences, contravening a Family Violence Intervention Order relating to your sister, criminal damage and theft. You were sentenced to 106 days’ imprisonment (which was reckoned as a period of imprisonment already served) and ordered to undertake a Community Correction Order for a period of 12 months.
9 It is of grave concern to this Court that the offending for which I must sentence you occurred only four days after you had been released from custody and in breach of the Community Correction Order which was to have commenced upon your release, namely on 7 March 2019.
10 In a plea on your behalf by Ms Joosten, the Court was told that, notwithstanding that you had broken up with your victim 18 months previously and had not seen her during that time, you thought that she had formed a new relationship with a young man and attended her home address intending to confront him. It would appear that you were significantly affected by substances, having used ice the previous day and then become intoxicated with alcohol.
11 Ms Joosten stated that you had a history of substance abuse and anger problems. You are one of six siblings aged between 30 and 12 years. Your parents had a difficult marriage and separated when you were 18 years old, and your father subsequently formed a new relationship and had a child by that relationship. You had behavioural issues at school and would regularly truant and, as a consequence, you moved from one high school to another, four times, until you finally left school partway through Year 11. After leaving school, you commenced a TAFE course in carpentry, but ceased after nine months and, since then, Ms Joosten stated that you had worked only sporadically in unskilled jobs.
12 Your counsel told the Court that you had abused cannabis and alcohol since the age of 13 years, and from 16 to 17 years, you have abused methamphetamine and other drugs such as cocaine, GBH and prescription medication. Following the termination of your two and a half year relationship with your victim, you attended the Monash Dandenong Hospital and were placed on an Inpatient Assessment Order for threats of suicide between 10 and 22 September 2016. You had a subsequent hospital admission, this time to Monash Casey Hospital, between 11 and 14 October 2016, where you were placed on an Inpatient Assessment Order due to increased agitation, threats of suicide and poly-substance abuse. There was another admission to that same hospital between 15 September and 5 October 2017 for drug-induced psychosis.
13 Brief hospital records relating to each of those attendances were tendered as Exhibits “3”, “4” and “5” respectively. The first of those noted that you refused to speak to the assessing clinician and were angry and abusive. The second noted the clinician’s assessment that you were suffering paranoia and poly-substance abuse and had an anti-social or narcissistic personality disorder, a history of assaulting people, and that you were continuing to be very aggressive and refusing to be compliant with the psychiatric assessment and treatment. The third of those hospital documents noted that you were at high risk of suicide and assaultive behaviour, you were impulsive with impaired judgment, you were not able to be managed in the community, and you had mood dysregulation and poor distress tolerance. It also noted that you had an extensive medical health history by way of non-compliance with medication. You were admitted following a car crash which was allegedly a suicide attempt. You were known to be a recreational drug user of ice, speed and marijuana, and had been drinking the previous night, but did not look unwell. It was noted that you appeared angry and described a series of escalating and violent behaviours with paranoia. Also, it was noted that you had a general practitioner, private psychiatrist and private psychologist in the northern area of Melbourne, who could continue treating you once you had stabilised. It was recorded that you are well-known to the northern area mental health system and an active patient of the northern Community Assessment Team. Hospital staff made inquiries about having you admitted to Northern Health, but you absconded from the emergency department. It was recorded that your father subsequently verbally abused staff at the hospital even though they had been trying to assist you.
14 I inquired of your counsel as to why there was no psychological or psychiatric assessment being tendered at the plea hearing. She stated that a psychological assessment had been undertaken, but she did not rely upon it on your behalf. In the circumstances, given that you appeared to have a significant mental health history, I adjourned the plea so that a psychiatric assessment by Forensicare could be conducted.
15 The plea hearing was resumed on 31 January 2020. On that date, a report dated 17 December 2019 of a psychiatric assessment conducted by Dr Glowinski from Forensicare on 26 November 2019 was tendered as Exhibit “D”. He noted a lengthy history of misbehaviour, truancy and expulsion from your early years at school at multiple different schools until you were finally expelled in Term 4 of Year 11 for starting a riot. Although you went on to undertake VCAL at a TAFE, you were expelled after a dispute with another student. Dr Glowinski also noted that you have a significant history of substance abuse, having commenced drinking alcohol from age 13 and tried cannabis at the same age. By age 17, you had begun using ice and were using a gram to a half ball of it over a three to four day period, as well as cannabis during the week. Also, you had tried various other illicit drugs from time to time.
16 He recorded that, since 2014, you have undergone several periods of incarceration related to drug, dishonesty, violence and driving offending and, save for a two-week period at a detoxification unit prior to your first time in custody, there is no evidence of you engaging in any significant way with drug or alcohol rehabilitation or addressing any mental health issues, even though both of these things formed part of the conditions of Community Correction Orders. I here interpolate that your criminal history indicates only the one period of 106 days on remand to which I have previously mentioned, and then the remand for the matters for which I must sentence you. There was no evidence put before the Court on your behalf of any period of detoxification or other attempts to rehabilitate yourself from your long-term drug addiction.
17 Dr Glowinski noted that you had endeavoured to commit suicide after the end of your relationship with your victim and had been admitted to a psychiatric ward for a time. You were prescribed mood stabilising medications, but ceased taking them after you were discharged.
18 You gave a history to Dr Glowinski that you had been released from prison four days prior to your offending and had spent the next three days drinking alcohol and taking ice. You stated that you were “blind drunk” when you went to the victim’s house. You described having a “lapse of judgment” by “wanting to have a go at” her new partner. You stated that you realised you “had done the wrong thing” so you just sat down waiting for police to arrive. I here interpolate that the prosecution opening, which was not contested, stated that, after you left your victim’s address, a neighbour found you “passed out” on her front lawn and, soon after, police arrived to find you sitting on the pavement with your hand bleeding extensively. In your subsequent record of interview, you certainly did not acknowledge that you “had done the wrong thing.”
19 Dr Glowinski noted that you are in good spirits and that your weight had increased in custody due to being on the medication, Quetiapine. He stated that there was little to suggest any current symptoms of psychosis or traumatisation. However, you showed only superficial insight into your difficulties with substance abuse, emotional and behavioural regulation and interpersonal functioning, and demonstrated a pattern of externalisation of responsibility. Notwithstanding that you described an awareness of the problems that your substance abuse have caused, he noted that you had nevertheless quickly relapsed into substance use after being released from custody.
20 Dr Glowinski noted that, in the past, you had apparently been diagnosed with an anti-social personality disorder. He further noted that you had been largely held in management units since being remanded in custody in March 2019. He considered that your history and documentation pointed to a significant and quite severe personality disorder, incorporating anti-social elements. You also have a polysubstance abuse disorder. He considered that psychosis did not appear to be a significantly relevant consideration in the offending for which I have to sentence you. You were released from custody, then became intoxicated using alcohol and ice and attended the home of your former partner in a state of jealousy “to have a go at” your partner’s new boyfriend. He considered that there was little to indicate that your offending related to delusional or psychotic beliefs. Further, the time that you had spent in management units was for reasons that did not appear to be related to psychotic symptoms. In any event, you are presently settled.
21 He expressed concern about your pattern of repeated incarceration over the last couple of years, with problematic behaviour whilst in custody, and flagged a potential issue of you becoming institutionalised without a capacity to manage yourself in the community. In order to manage, he considered you would need to have stable housing and employment and limited access to substances, which would mean cutting yourself off from drug associates, which you would find difficult. He considered you would benefit from drug and alcohol counselling. He did not consider that there were any indications that incarceration was any more onerous for you than the average person of normal health, apart from your behaviour which led to you being housed in management units in custody.
22 At the adjourned plea hearing on 31 January 2020, Ms Hession appeared as your counsel. She tendered a reference from a former employer, Mr Gavin Bartholomew of Planned Constructions dated 4 October 2019 (Exhibit “6”). The reference mentions that, through your older brother, Jordan, you obtained employment with him in his landscaping business where you did labouring work. He stated that he was aware of your difficult adolescence and considered that you were impressive in your approach to applying yourself to work and doing what was required of you, which involved early morning starts and working long arduous days, at times, in challenging weather conditions. He stated that you remained in his employment for a couple of years and then he had to lay you off through no fault of your own, but you did come back to work as required for short periods of time. He considered you to be an honest person, who had shown great resilience in sticking to the task at hand and had been a valuable member of his workforce. He expressed the view that, with a bit of support and the opportunity, you could again be a valuable participant of an organisation and the community.
23 The reference does not make clear over which period you were employed by Mr Bartholomew. It would appear from your prior criminal history that, on 3 November 2016, by reason of an unlawful assault against your brother, Jordan (who had helped you get that, work as he as employed there), a Family Violence Intervention Order was taken out against you, with him as the protected person. This was breached on 14 March 2017 by reason of you sending your brother a number of threatening text messages. The contravention of that Family Violence Intervention Order was one of the charges upon which you appeared at Latrobe Valley Magistrates’ Court on 30 October 2017. Given this factor and the 106 days that you spend in custody up to 7 March 2019, the “couple of years” of employment referred to by Mr Bartholomew seems a somewhat loose expression. Certainly, Ms Joosten in her submissions on 30 September 2019 had referred to you having had only sporadic employment, and, in particular, that you had worked “intermittently” with your brother doing landscape gardening.
24 Ms Hession also tendered as Exhibit “7” a letter of apology written by you and addressed to “To Whom It May Concern”. You told the Court that this had been written by you prior to 30 September 2019, the first day of the plea hearing. In the letter you apologise for your actions, stating that you were immature and in an intoxicated state and had no intention of scaring your victim or her family and realise how horrifying it must have been for them. You state that you are sorry. You claim that, as soon as you realised what had happened, you sat down and waited for the police to come and are extremely embarrassed and have had a very long time to reflect on your actions. You state that you have never been in custody longer than three months and, whilst awaiting sentence, you have attempted to engage in psychological treatment by seeing a psychologist fortnightly and that you are both physically and mentally in the best place that you have been in a long time. You further state that you have made arrangements with your family to go and work on a farm and hope to get more psychological treatment when you are released from custody.
25 As I stated at the hearing on 31 January 2020, I place little weight on this rather late expression of remorse. I am not satisfied on the balance of probabilities that you did sit down in a state of realisation of your wrongdoing and simply wait for the police to come. As previously mentioned, the evidence of a witness is that you collapsed in her front yard. Further, when interviewed by police after the offending you were abusive and disrespectful both to police and about your victim and her family and denied the offending. It is possible that you were still suffering some effects of whatever substances you had ingested. I do note that when the record of interview was commenced at 4.12am, you appeared somewhat drowsy. The interview was suspended at 4.14am and not recommenced until 4.56am, following which you present as alert albeit aggressive. At times, you laughed about such matters as your victim having a 5 year Intervention Order against you. By the time the interview re-commenced, it was almost seven hours after the offending had occurred. I also note that Dr Glowinski’s report does not contain any history of you expressing remorse or apology to the victims or acknowledgment of the impact upon them. Rather, as previously mentioned, he comments that you had superficial insight into your difficulties with substance abuse and associated behavioural issues and seem to externalise responsibility for your failings.[1]
[1]Paragraph 53 of Exhibit “D”
26 Mr Hilton-Taylor, you should be left in no doubt as to the seriousness of your offending behaviour and the effect that it has had upon your victims. Not only was your former girlfriend your victim, but also the other people present in her home, which included her mother and two teenage siblings. Your offending strikes at the heart of the right of every citizen to feel safe in their home, particularly at night at a time when most people might be expected to either be in bed or, at least at home and not long from contemplating going to bed. In our community, there has been an alarming increase in the rate of violence perpetrated against intimate partners or former intimate partners. The law must make it very clear to people like you and to others who might be minded to offend against either current or former partners, that this will not be tolerated. Men do not own women with whom they have had a relationship. A sense of entitlement borne of jealousy, even if your former partner had commenced a new relationship, is in no way a mitigatory explanation. If every person who was unhappy with the break-up of a relationship behaved like you have done, we would be living in chaos. People who are going to behave with an irrational sense of entitlement need to know that they will be punished. Victims must feel vindicated and know that a Family Violence Intervention Order is not just a piece of paper with no consequences attached to its breach.
27 The effect upon your victim and her mother has been clearly stated in two Victim Impact Statements tendered as Exhibit “B” and “C” respectively.
28 Your former girlfriend, who had had no contact whatsoever with you for 18 months, thought that she had some protection by virtue of the Family Violence Intervention Order in her favour. She knew that you were in custody for, amongst other things, violent behaviour relating to your own sister, and was shocked to be in her bedroom and hear the window being shattered, and see blood hit the floor as your hand came through the curtain. She describes the terror of seeing you standing there in front of the security door with blood running down your arm and screaming verbal abuse and threats at her, as you relentlessly attempted to break through the door with a look of rage in your eyes. She stated that, having been a victim of your violence in the past, she believed that you were going to kill her. She has been left with symptoms of depression and Post-Traumatic Stress Disorder. She suffers disturbed sleep. Her ability to work and socialise has been adversely affected and she has ongoing trust issues with men and endures shame and guilt for what your offending has done to her family.
29 Your victim’s mother confirms the terror that your victim has suffered from your offending and the nightmares and anxiety she suffers. She grieves the loss of her happy, confident, loving, caring, brave and trusting daughter. She also states that coping with the aftermath of your offending has been very emotionally challenging and she feels scared all the time and, herself, suffers disturbed sleep, and she now locks up the family home like “Fort Knox”, as she fears for the life of her daughter and the rest of the family, and feels ashamed and guilty that she did not do more to prevent this from happening.
30 The consequences expressed by your primary victim and her mother are foreseeable and understandable consequences of your appalling behaviour. You have an extensive history of violent, antisocial behaviour and have repeatedly contravened court orders, including three Community Correction Orders, four Family Violence Intervention Orders and many bail undertakings (whether by failing to appear or committing new offences). As I have said, it is very concerning that this offending occurred so soon after you were released from serving on remand of 106 days. Further, it is an aggravating feature of the offending that you were supposed to be undertaking a Community Correction Order at the time.
31 Your counsel advocated for a combination sentence of up to one year’s imprisonment, together with a Community Correction Order. In my view, such a sentence would not adequately reflect the objective gravity of your offending. I do not consider that such a sentence is appropriate in all the circumstances of your case.
32 Your counsel submitted that your offending was not pre-planned, but it is clear that you deliberately made your way to your former girlfriend’s house. I accept that the incident was short-lived and no weapon was involved, and there were no physical injuries inflicted by you, but it is plain that the psychological consequences of your offending have been marked, particularly upon your former girlfriend. You were intoxicated, apparently having used Ice over a period of some days after release from custody, as well as alcohol. This is not mitigatory. If anything, your hyped-up, aggressive state when smashing the window and trying to force your way into another person’s home would increase the terror of any victim because your behaviour was so uncontrolled and you manifested yourself as a person with whom it would not be possible to reason.
33 You are still relatively young, only 23 years old. Generally speaking, in sentencing someone of relative youth, emphasis would be placed upon the rehabilitation of that person. I am mindful of the fact that as a young person, you have spent 345 days remanded in custody in an adult prison for these matters prior to sentence and, of course, you had served a period of 106 days on remand, which finished only five days prior to the commission of these offences on 11 March 2019. To have been before a court and sentenced on only 7 March 2019 shows scant regard for the law. Unhappily, you have a long history of angry, antisocial behaviour and it appears that this has continued while you have been in custody.
34 Your counsel stated that of the period that you have ben remanded in custody for this offending, you have spent something in the order of 8 months altogether in management units, including a period of 5 to 6 months in the Exford Unit at the Metropolitan Remand Centre. I do acknowledge that the Exford Unit, in particular, is a place of sensory deprivation and limited contact with other human beings, however, it seems that you have yourself to blame for being placed in such management units. In particular, apparently you were placed in Exford following an assault upon a member of prison staff.
35 Your counsel has conceded that, in light of Dr Glowinski’s report, the principles in R v Verdins; R v Buckley; R v Vo[2] have no application, but relied upon your unhappy history of being admitted to psychiatric units. As best I can glean from the material before me, each of your prior admissions to psychiatric units relates to some form of drug overdose. Although I queried your counsel as to whether there was material from the Northern Area Mental Health Service, which was reported in the Casey Hospital notes as being somewhere where you were well known and had had a private psychiatrist and psychologist who had treated you, Ms Hession told the Court, “We have no record of any treatment in the Northern Area Mental Health Service after 23 September 2017”. No material from the Northern Area Mental Health Service prior to that date was tendered at the plea hearing on your behalf.
[2](2007) 16 VR 269
36 I note that you are currently receiving medication by way of the mood stabiliser, Quetiapine or Seroquel. According to your earlier counsel, Ms Joosten, over the years, you have been prescribed a variety of mood stabilisers, including Quetiapine, Sodium Valproate, Epilim and Paliperidone. However, there is also a history of failure to comply with medication in the community. Ms Webster, on behalf of the prosecution, noted that in the Forensicare Report, Exhibit “D”, Dr Glowinski, had recorded that you had already flagged with him that you would want to be on a lesser dosage of your current mood stabiliser, Seroquel, which is apparently 300 milligrams per day. Although it is understandable that such mood stabilisers may have some side effects which you do not like, there is clearly a need to protect the community from you and your failure to engage with mental health authorities in the past is something which needs to be addressed when you are ultimately released into the community again.
37 Although I accept that you are immature, you have exhibited a relatively long history of significant antisocial behaviour and have been diagnosed with an Antisocial Personality Disorder, which is complicated by your long-term Polysubstance Abuse Disorder. I consider that you present a very significant treatment challenge, but at the same time am mindful of Dr Glowinski’s warning about you potentially becoming institutionalised. It is a difficult balance for a court to strike. I accept that you have had time to reflect on your wrongdoing and references from your mother and Godmother[3] refer to this. The references also state that you are remorseful for what you have done. Both of the references were dated in September last year, however, on 26 November 2019, Dr Glowinski assessed you as “having superficial insight into [your] difficulties with substance use, emotional and behavioural regulation and interpersonal functioning.” I have already referred to this assessment. His view is that you appear to show “a pattern of externalisation of responsibility” and that your history indicates a significant and quite severe Personality Disorder, incorporating antisocial elements. Also, I have already noted his comment that, although you express an awareness of problems associated with your polysubstance abuse, you nevertheless quickly relapsed after being released from custody last time. Whilst it would be wrong of this Court to say you have no prospects of rehabilitation, I must say that I am very, very guarded about them. While it is no part of my role to punish you for anything you have done in custody, the fact that you appear to have behaved so poorly in prison shows a difficult management problem and reflects poorly on your prospects of rehabilitation, as does your repeated failure to engage with rehabilitative dispositions of courts in the past.
[3]Exhibits “1” and “2” respectively
38 In sentencing you, I take into account your early pleas of guilty and the fact that they facilitated the course of justice and have utilitarian benefit, particularly in saving your victim and members of her family having to give evidence. In your favour, it would appear that you have somehow repaired your relationship with your mother who, has endured a dreadful time in recent years having lost one of her feet because of cancer. Apparently, the Intervention Order against you naming her as a protected person has expired. She has continued to be supportive of you and states that you speak of what you hope to do to improve your life. She certainly expresses the need for you to have counselling for your anger and general attitude. She described you as having been ambitious and driven as a young child and then changed by illicit drug use. Somewhat curiously, she states that you are “fiercely protective of your siblings.” In this regard, I note that one sister and one brother have had to take out an Intervention Order against you. Perhaps you have a kinder attitude towards your younger siblings.
39 Your Godmother, Vanessa Van Wyk, a long term friend who grew up with your mother in South Africa, described your behaviour as “shocking”, but noted that your father has never really been present for you. She stated that you craved his acknowledgment and encouragement and, as the years progressed, you became more and more disconnected and broken and angry and displaced. She noted that, at one stage, your parents, prior to separation, could not manage your behaviour and sent you to live with an uncle in Sydney for six months and she believes that you felt abandoned by your family at this time. She stated that the root cause of your anger has never been addressed and you have an immature mindset. Yet, she states that you remain a very intelligent, loving and caring human being, albeit still very angry and broken and with very little self-esteem and an “I don’t care what happens to me” attitude, which is merely a façade as you try to cope with a sense of worthlessness. She maintained that, underneath this, you have attributes of humility, kindness and forgiveness and she is hopeful that you will enter a rehabilitation program to start a journey of recovery. It is possible that your Godmother’s insight is correct, but I here note that no history of a sense of abandonment by your parents was given by you to Dr Glowinski, who recorded you as stating that your “homelife was pretty good” and you described “occasional hiccups here and there just like any other family.” You did mention to him that, for a time, you lived with an uncle in Sydney, where you “flew under the radar” before returning to Melbourne. Of course, such history may be attributable to your immaturity and lack of insight into your own psychological state.
40 It is good that your mother and Godmother can still see admirable qualities in you and, although the reference from your former employer is somewhat vague as to when it was that you were employed by him, it does attest to an ability to be reliable and work hard – presumably when you are not affected by illicit drugs. If you could commit to engaging in intensive psychological and drug addiction treatment, it is possible that some of your better character traits may become more apparent.
41 The predominant sentencing principle for this serious offending must be general deterrence so that others will know that such gratuitous antisocial behaviour will meet with appropriate punishment. There is also a need for emphasis upon specific deterrence, particularly given your repeated breach of Intervention Orders, although I make plain that I in no way punish you for any offences other than the ones for which I must sentence you. The Court must denounce your offending and protect the community from you, particularly given your prior history of antisocial and violent offending and your refusal to engage in rehabilitative treatment, even though you had a number of opportunities by way of Community Correction Orders and a wholly suspended sentence of imprisonment.
42 I do accept that having served 345 days on remand for these offences coming fairly soon after having served 106 days (being time reckoned as served, for the sentence imposed by the Magistrates’ Court on 7 March 2019) is a long time for someone of your relatively young age to be in an adult prison. Unhappily, you are your own worst enemy and, unless you make a concerted effort to engage in psychological and drug rehabilitation treatment, I consider that your life will go on being that of an angry, violent, antisocial person, who is a menace to society and that you will end up re-offending and being returned to prison time and time again to serve sentences, and that your life will be a miserable and wasted one. Having said that, it is of some significance that you have been prepared to take mood stabilisers whilst in custody and also to see a psychologist on a fortnightly basis, albeit that no report was provided to the Court about such counselling.
43 In all of the circumstances, there can be no doubt that the only appropriate sentence is a term of imprisonment. Whilst I am not optimistic about your prospects of rehabilitation, I am concerned about you becoming institutionalised and for this reason I have deemed it appropriate to give a sentence comprising a head sentence with a non-parole period which will allow you the opportunity of a significant period of supervision after your release from custody. Of course, whether you are granted parole is a matter for the Parole Board, not for me. If you do not begin to behave in custody you may well find that your chances of obtaining parole are very adversely affected. In arriving at the sentence I intend to impose, I have been mindful of the principle of totality, noting that all offences were committed during the same relatively short period of time.
44 Would you please stand up?
45 On Charge 1, attempted aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 42 months.
46 On Charge 2, damaging property, you are convicted and sentenced to be imprisoned for a period of 12 months.
47 On Charge 3, contravention of an order intending to cause apprehension or fear in the protected person for her own safety or that of any other person, you are convicted and sentenced to a period of 12 months’ imprisonment.
48 The base sentence is that of 42 months’ imprisonment on Charge 1. I order that 3 months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Hence, the total effective sentence is 48 months’ imprisonment.
49 I direct that you serve a period of 30 months’ imprisonment before becoming eligible for parole.
50 I declare a period of 345 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
51 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 years with a non-parole period of 3 ½ years.
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