Director of Public Prosecutions v Kerr
[2024] VCC 2048
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA | Revised No Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02401
Ind number C2215173.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN DAVID KERR |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September, 31 October, 12 Dec 2024 |
DATE OF SENTENCE: | 13 December 2024 |
CASE MAY BE CITED AS: | DPP v Kerr |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2048 |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary - Recklessly causing injury - Common assault -Confrontational entry into boarding house room, prolonged attack (recklessly causing injury) - common assault involving removing bottom clothing to permit visual inspect of vaginal region for items alleged to have been stolen - 54 years old at time of sentence – Some criminal history - Guilty plea; Remorse - R v Verdins [2007] VSCA 102 limbs1-5 - Disadvantaged background: Bugmy v The Queen [2013] HCA 37 – extent of reduced culpability more generally.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Ms J. Clark | Peter Lunt Lawyers |
HIS HONOUR:
1Adrian David Kerr, you have pleaded guilty to the three charges laid on the indictment filed in this court. Those charges are one charge each of aggravated burglary, recklessly causing injury and common assault.
2The offending occurred back in April of 2021. There is a lengthy procedural history of the matter before the court which is set out at the end of the Crown summary.
3You are now 54 years of age, turning 55 in a few weeks. You have admitted a criminal history which your counsel was at pains to point out had no related offending within it in the sense of there being no violence offences or instances of burglary or aggravated burglary.
4The summary sets out the offence maximum penalties. Aggravated burglary has a 25-year maximum term of imprisonment. The other two offences have five year maximum prison terms.
5You pleaded guilty before me on the 4 September. The matter had been listed the day before for trial. I had my jury script ready to go. It settled overnight and you were arraigned in short form on 4 September. No criminal history was available to be filed at that point. I remanded you in custody, as your counsel conceded that a prison term was inevitable, and there had been some issues with your living away from the bailed address.
6The plea was adjourned to 31 October. That day had a pretty wobbly start as your counsel told me that you had instructed her that you wished to change your plea. She would have been required to withdraw from the matter. I wasn’t sure if you necessarily understood what that all involved and the test that had to be met to succeed in that course, so I stood the matter down. That issue blew over, you instructed her to proceed with the plea and we got on with the matter. We finalised the arraignment process in that you admitted your prior criminal history and provided your particulars. Then the matter was opened to me by the prosecutor in accordance with the written summary of prosecution opening for plea dated 3 September but updated on 30 September 2024.
Ms Clark who appeared for you told me it was an agreed summary. I was of course well familiar with it as it was virtually identical to the summary in the case of Ms Leggett, one of the co-accused who I had sentenced earlier in the year. There were some differences though.7I sentence you in accordance with the agreed summary and on the basis of the charges laid on the plea indictment. The trial indictment had some other charges which have not proceeded including one charge of rape. The summary refers to some photographs of injuries and of the crime scene and there is no need for that material or the medical report to be marked as an exhibit. They're in the materials.
8As I said in Ms Leggett’s case, I say now in yours, there is no point in my setting out in these reasons the full factual setting. That agreed document does that, and I will sentence in accordance with it as well as those photographs that were referred to.
9So I will provide only a brief summary of the facts so that my reasons and my ultimate sentence might make sense to anyone who happens to access these remarks when they come to be published. Otherwise, the sentence would simply exist in a vacuum.
10Your victim was Tayla Nibbi.[1] In April 2021, she was living at the same house that Ms Leggett, Ms Leggett's then partner, Dylan Slattery, and his mother lived at. That address was 5 Melaleuca Drive in Hastings and it was in fact a kind of boarding house in the sense that it was a brick veneer house with multiple bedrooms which had been sublet. There were some shared common facilities including bathrooms and a kitchen.
[1] A pseudonym
11You were a frequent visitor to the boarding house. As I have said, Ms Leggett, her partner, Dylan Slattery, and Ms Nibbi lived there. They all knew each other and they knew you.
12On the morning of Friday 9 April 2021, you, Leggett, Slattery, Ms Nibbi and a man named Wieben, went to 7 Lae Court in Hastings. That was where you lived. You became aware at some stage that your bag containing some drugs and cash was missing and you suspected Ms Nibbi had taken those items. She said that she had not. I interpose you now know that she did not. You demanded that she remain at Lae Court, and she did. I am not dealing with any aspect of false imprisonment in this sentencing exercise. That is just part of the background leading into the actual offending that I am dealing with. You went back to the boarding house at Melaleuca Drive to search for the bag. You could not find it and you then returned to Lae Court. Then the group returned back to the boarding house.
13There was a later exchange between Ms Nibbi and that group, including you, in Slattery’s room. So this is back at the boarding house. There was obviously some tension in relation to the lost items and it is obvious that
Ms Nibbi fell under suspicion. It seems plain enough on the materials that your co-accused, Ms Leggett, was fanning the flames of that suspicion. In fact, Ms Nibbi had done nothing. She returned to her own room, she locked herself into it and then she went to bed.14Over a period of time the group you were a part of taunted her through the door about the missing drugs and cash. She remained in her room.
15That was where she was at 6am the next morning. Her door was shut. She had locked her door.
16You, Ms Leggett and her partner, Slattery, were in the room at the premises shared by Leggett and Slattery.
17Ms Leggett was encouraging Slattery and you to recover the missing money and drugs and Slattery went to Ms Nibbi’s room followed by you and Leggett. Slattery kicked open the door and you and Leggett then entered as trespassers. Slattery stayed at the door to ensure that no-one else entered. You and Leggett entered with an intent to assault, and the feature of aggravation was the presence within of a person and your state of awareness on that score. Ms Nibbi demanded that you all get out of her room. You ignored her. Instead, a nasty physical attack was launched upon her by you. That is described in detail in the summary. She was kicked and punched to the head and body and items were thrown by Ms Leggett. Leggett threw items which struck your victim including a crystal vase, a crystal bowl and a metal bucket. Your victim curled up in a ball and tried to protect herself from the blows directed at the back of her head. At one point Ms Leggett left to obtain a weapon and she returned with a metal pole which she then applied in multiple strikes to the victim. Her hands were being targeted. At one stage Leggett threw a knife at Ms Nibbi striking her in the back. During the physical assault you and
Ms Leggett made demands for Ms Nibbi to give back your money. She repeatedly told you she did not have it. As I have said, you were later to learn that was the truth. That, in fact, Ms Leggett had taken it.18The physical attack lasted a sizeable period. The complainant estimated that it went for about 40 minutes. The precise time is not critical. It was plainly a sustained attack. It is agreed for the purposes of this plea that the recklessly causing injury charge relates to the physical force employed by both you and Ms Leggett within that room. You were each complicit in all that took place.
19You then placed your hands underneath Ms Nibbi’s upper clothing and under her bra, touching her bare breast searching for the money and drugs. That is part of the common assault. Leggett then said to you 'check her cunt she’s banked it', a reference to drugs and cash potentially being secreted within Ms Nibbi's body. Ms Nibbi’s pants were then pulled down from the waistband by you and Leggett then attempted to locate the drugs and cash by visually inspecting her vaginal area in your presence.
20She, that is, Ms Nibbi, was drifting in and out of consciousness. She heard voices saying at one point ‘we’ve killed her.’
21Soon after, you and the others fled. She regained consciousness and realised that her pants were down, and her shirt had been pulled up.
22Police were called and they attended. She was found in her room and she was not in a good state. She could not walk. She was taken by ambulance to hospital where she had swelling to her hand, a fractured metacarpal, and some facial injuries constituted by bruising.
23She spent some six days in hospital.
24You were arrested on 24 July 2021 and you were interviewed. The summary sets out some of the answers. I have read the entire police interview. You were not truthful with the police, but of course that is not a matter in any way in aggravation. You seemingly blamed Leggett. For what it is worth, she blamed you in her interview as well. The truth is of course you were each complicit in the acts which took place within that room, acts that were targeting someone who was of course, as you now know, completely innocent of any wrongdoing.
25I mentioned earlier that there is a lengthy chronology of the matter before the court set out towards the end of the agreed summary. I have already mentioned the way in which the matter settled the day after the trial was ready to get underway. That may be so, and no one was submitting it was an early plea, but of course there were some charges which did not proceed. I should add in one last detail to the chronology of listing; that on 31 October application was made on your behalf to adjourn the plea to 12 December to permit psychological and psychiatric material to be obtained as well as to permit subpoenaed material to be available. That took place and hence I have a large amount of material filed on the plea.
26You had spent no time in custody until my remand of you on the day you were arraigned being 4 September 2024. Your co-accused, Ms Leggett, was sentenced by me on 19 August 2024 and those remarks can be found at 2024 VCC 1272. I see no need to mark them as an exhibit. The other
co-accused, the man I mentioned, Dylan Slattery, Ms Leggett’s then partner at the time of this offence, died in May 2021, shortly after this event.27That then is only a brief summary of the lengthy agreed summary in this matter. As I have said, I will sentence pursuant to the more detailed agreed summary marked as exhibit A and those other matters I have referred to including the photographs. I turn then to the impact of your crimes. Ms Nibbi had made an impact statement dated 14 August 2024. That was marked as Exhibit B on the plea.
Impact
28The impact statement was read aloud by Ms Nibbi when I heard the plea of your co-accused, Ms Leggett, on 16 August 2024. She had been advised not to read a few sections within that document which it was accepted were not admissible. Neither the prosecutor nor defence counsel in your case, needed that impact statement read again. It was filed on your plea, but as I did on the other plea, I will not have regard to those agreed matters. So paragraphs 16 and 35 and 36, and as to paragraph 27, I will not act on any account of her being threatened and in any physical danger after the event. She may feel these things, but they cannot be levelled at you.
29I will have regard then only to the admissible portions of the victim impact statement placed before me.
30I do not see the need to set out all of the details of that impact. The impact statement does that. The crime of aggravated burglary is renowned for the impact that it causes upon victims and for the sense of invasion and erosion of feelings of security and safety that it brings about. All those things are on display here. Her door was kicked in. She was then attacked physically in her own room after that entry. She spent six days in hospital. The common assault was a degrading exercise. For her lower garments to be pulled down by you, to permit visual inspection of her vagina by Ms Leggett. She was at that point in a most vulnerable state indeed given the physical violence that preceded that act. She speaks in her impact statement of the sense of security being stripped away from her by the actions of people she had at one point trusted. There was the pain and the physical impact, but she says that is overshadowed by the emotional impact of these crimes. She thought she was going to die. She has lost the ability to trust and to meet new people. She describes having nightmares. She has found it impossible to live with others and she has endured bouts of homelessness. She has lost some independence. Your crimes have had a deep impact upon her, and I take that into account.
In Mitigation
31Ms Clark conducted the plea in mitigation on your behalf yesterday. She made a number of oral submissions. She also relied upon an impressive written outline of submissions for the plea dated 11 December 2024. There was a good deal of written material including a psychological report from
Dr Cunningham, a report from a psychiatrist, Dr Jindall, older psychiatric reports from Dr Abelhady and Dr Kruk and various letters and notes from the Frankston Clinic where your GP, Dr Taylor, worked. There was a bundle of Justice Health clinical notes which had been subpoenaed and a large bundle of course certificates and results and educational course statements. There were two references from your daughters. There was a list of medication which I thought was being tendered by Ms Clark, but she was content simply to spell out to me the medications you were taking, so Exhibit 9 never materialised and did not need to.32Either by reference to the written materials filed on the plea or the oral submissions supplementing those written materials, Ms Clark provided to the court a great level of detail as to your family, educational, work, drug use, relationships, physical and mental health issues and your past criminal history.
33She made some submissions to the court as to your conduct since being remanded, as well as to your prospects of rehabilitation. She addressed me as to the objective gravity of the offending and as to the relevant sentencing purposes and how they might be reflected in the sentences. She argued that there was some reduced culpability here arising from not just the Verdins considerations, but also by virtue of Ms Leggett’s role in falsely informing you of Ms Nibbi’s involvement in the theft.
34In the excellent and thorough plea in mitigation conducted by Ms Clark, she relied chiefly upon the following matters in mitigation:
· Your guilty plea;
· The presence of some remorse;
· Your disadvantaged background (Bugmy[2]);
· The application of the first 5 limbs from the well-known decision of Verdins[3]; I treated her as abandoning the 6th limb argument.
She conceded that the offending was serious and that a prison term was inevitable here and one of a dimension requiring you to serve more time in custody. She argued though for a combination type sentence. That is to say, a prison term which would have you released onto a community correction order in due course. Of course I have already sentenced Ms Leggett and I am not free to simply ignore that sentencing outcome. There are parity issues here and she, Ms Leggett, had a large range of mitigatory features, some not present in your case, including a very significant increased custodial burden posed by her illness and being wheelchair bound. That had a significant impact indeed in the weight given to a number of sentencing purposes in her case. Of course there are also aspects in mitigation in your case that had no role to play in hers. I have had to weigh up the various matters, as I am obliged to, to give appropriate regard to this principle of parity of sentence. I will say a bit more about that later.
Prosecution
[2]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
[3]R v Verdins [2007] VSCA 102 (‘Verdins’)
35The prosecutor, Mr Gray, had prepared some written sentencing submissions dated 11 December. They were marked as Exhibit C. I do not see any need to repeat them all in these my reasons. He also made some oral submissions.
36He made submissions as to the seriousness of the aggravated burglary, it being confrontational in nature. The prosecution argued that the common assault was a serious example of the offence. Whilst not challenging the application of the Bugmy principles, they, the Crown, did challenge any application of the Verdins limbs other than the 5th limb. They submitted that there was no realistic connection between the conditions and the offence, and that drug use had a connection and that that could not be mitigatory. They questioned the submission made by Ms Clark as to your having very good prospects of rehabilitation given the long-term use of illegal drugs as disclosed in the materials before the court.
37The Director of Public Prosecutions was arguing that a term of imprisonment was required and of a duration requiring the fixing of a non-parole period. They argued that a combination type order was just not open when consideration was given to the matters in aggravation and mitigation in your case, and for that matter, the need to pay appropriate regard to parity of sentence.
Background
38Let me turn briefly to your background. Briefly, because I really have no reason not to accept the submissions and the material placed before me as to your family and personal background. I see no need to repeat it all back to you. Much of it is set out in the written outline as well as in the reports of
Dr Cunningham and Dr Jindall and you probably would not thank me for traversing some of the matters in an open court39You were born in December 1969. You are now 54 years of age.
40You had a terrible childhood by all accounts with an abusive and violent father, a mother wearing scarves to hide her own injuries and then the death of that mother when you were still a boy. There was then movement to your grandparents and denigration and further abuse by the. You left home as a
13-year-old and lived with a friend. There was far more to it than that, but as I say, I see no need to repeat all those details to you of that abusive background that you lived. You were educated to year 7 level and started work at Jefferson Ford as a 14-year-old. You were there for four years or so, but you could not, it would seem, complete the schooling components, I'm assuming of an apprenticeship. You went to work in the mines in Queensland for a couple of years and, upon returning to Victoria, you worked at a pest control company before starting your own business in that field. You had a number of employees as I understand it. That business failed after six or seven years and since then you have been reliant to some degree on Centrelink benefits, including the disability support pension. You have done some casual work as a cleaner for about 16 months.
41Drugs have obviously been very problematic for very many years. Cannabis and ice. Alcohol had been a significant problem, but you ceased the use of that many years ago.
42You had two daughters from a relationship with Debbie Masterson. They are 28-year-old Corinne and 25-year-old Taryn and they have both written excellent references and attended court in person yesterday to support you and support you once again today joining the hearing remotely. You have a fiancé, Ms Barker, who also attended yesterday and is back with us today in person.
43You have a criminal history, and it has some relevance to my task. I am not going to set it all out. There are a number of appearances before the courts over the years for offences of differing levels of seriousness including some dishonesty and some drug offences. I note two instances of trafficking in drugs. There are however no instances of burglary or aggravated burglary and, notably, no offences of violence. You have received only two prison sentences and only one of them had to be served and that was for a period of only
42 days. You have not always taken the chances offered to you by the courts as you have breached some orders in the past.44As to that prior criminal history, you do not fall to be sentenced a second time for any of those past matters. You received those sentences, whatever they were, and you served them. I do have to make judgments as to your risk of
re-offence and the extent of the need to deter you and to protect the community from you. I have to make judgments as to your future prospects of rehabilitation as well.45You are doing well enough in custody in that you have done such courses and programs as you can, and you are working as well. I am told you are drug free and medicated and receiving some treatment. Still it is not easy for you and the reasons for that dwell in the mental health materials filed before me.
46I have dealt only quite briefly with your background. There is much more within the reports and the written materials. I have not for instance dealt with the mental health issues spoken of. I will deal with them shortly enough.
47An offender's circumstances and their experience during their childhood in their formative years must be considered in the sentencing task, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences and they can sometimes explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence, abuse or neglect into account when sentencing is really just the mark of a humane society.
48Ms Clark argued that the principles derived from the High Court case of Bugmy that you heard discussed yesterday had application here. Ms Clark said she was relying upon those principles in the general fashion described in that line of authority. The Crown did not challenge that submission, given what they had read of your background in the written materials.
49The application of these principles does not depend upon proof of some causal connection between a background and the offending. Nor is there one here.
50I am satisfied to the required degree that your early background was seriously disadvantaged. That there was a real level of dysfunction and instability in your developmental years. You were exposed to things no-one would choose to have as part of their background. You were exposed to physical, emotional and sexual abuse in your early years. You witnessed things you should not have seen. You witnessed the physical abuse of your mother. You had the absence of positive role models in your formative years. Yours was plainly an unenviable background. I give it full weight in the way in which that phrase is employed in the case law that I have mentioned in Bugmy. But also in cases such as Herrmann[4] and Sabatucci[5], Newton[6] and Dhal[7].
[4]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
[5]Sabbatucci v The Queen [2021] VSCA 340
[6]Newton (a pseudonym) v The King [2023] VSCA 22
[7]Dhal v The King [2023] VSCA 289
51I take your background into account, as far as I am able to, including as leading to some reduction in your culpability. There can be a softening of some of the retributive and deterrent purposes of sentencing.
52The case law though makes it clear enough that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though no causal link is required, and also the nature of the crime or crimes, and the relative importance in a particular case of sentencing considerations, things such as deterrence, community protection and rehabilitation. See the case of Terrick[8]. Our backgrounds leave their mark and yours most certainly has on you and there is reference in the psychological material to that.
[8]DPP v Terrick [2009] VSCA 220
53You are now 54 years of age. You have a long enough prior criminal history and I'm dealing with serious offending. There are limits to the application of these Bugmy principles, but I apply them to my task.
Guilty Plea
54I turn to some of the other matters raised on the plea by Ms Clark. Firstly, the fact of your guilty plea. I have already mentioned there is a very lengthy chronology of the listing history of this matter attached to the opening. The upshot is you pleaded guilty on the day of the trial listing. Your guilty plea is still very important. It is not to be treated by me as late as the chronology would suggest given the existence of other charges which did not proceed including, for instance, the rape. Your plea was, I should say, later than
Ms Leggett’s.55Ms Clark was not suggesting it was an early plea and plainly it was not. You have though taken responsibility for your crimes and that is important in your case as it was in Ms Leggett's.
56As with Ms Leggett, you too were co-operative with the police in that you attended for interview, and you then answered their questions politely. I take that into account in your favour, though there really is not much mitigation to be had from your interview account where you were obviously far from honest about what had happened in that room. That is not a matter in aggravation. As Ms Leggett did, you too were not truthful about what took place or why you were in the room. You claimed you had done nothing wrong, that you had not struck your victim or encouraged anyone else to do so, and that you only attended to protect her. You blamed Ms Leggett and as I say, she returned the favour and blamed you.
57As a result though of your guilty plea, the time, cost and the effort of an actual trial up in this court has been avoided. Ms Nibbi has been spared the experience of giving evidence at trial and that is worth a lot. I could see that she was a most vulnerable person and giving evidence would not have been easy for her at all. I saw her struggle with the experience of simply reading her impact statement which she did in the course of the plea for Ms Leggett. It was not easy and of course giving evidence would have been far more difficult for her. She has been spared that experience by your plea. So too have the various other witnesses been spared that experience and some of them were civilian witnesses who were living in the boarding house.
58You have facilitated the course of justice, and you must be rewarded for doing so and these are not minor matters at all.
59I take these various matters into account in mitigation.
Remorse
60Ms Clark was not submitting there was much actual remorse on display. She argued that I should find that there was some remorse present. She took me to a portion of your account to Dr Cunningham, but plainly you had minimised your conduct, referring to what others had done to your victim as though you had not been engaged in acts of violence. Your police interview which was much earlier of course was replete with minimisation. You at a late stage pleaded guilty, but on the next date you had then instructed your counsel to change pleas, though that issue went away when you had received some advice as to the potential difficulties in that sort of application.
61Really what I am left with is the fact of your guilty plea. A guilty plea can be indicative of some remorse. That is not always the position. I have considered the matter overnight.
62I am prepared to treat your guilty plea as indicative of some pretty limited remorse, and I take that into account in your favour.
Rehabilitation
63I turn now to your prospects of rehabilitation. As I said to Ms Leggett, I say now to you that this was serious joint offending committed upon a vulnerable woman. You were not some silly teenager. You were a mature person with a criminal history behind you. You have had long terms issues with drugs of dependence. I do not in your case have the disastrous medical conditions which had greatly reduced Ms Leggett’s risks into the future. Nor though do I have a history of violent offending and past prison terms as I had in her case. You have been a contributing member of the community in some phases of your life, and you may be just that once again in the future. Your criminal history really does not greatly inform my task. It would not have been surprising to see a far longer and darker adult criminal history given the developmental background that I have set out.
64As is always the case, you are far more than just the person who committed these crimes. Your daughters speak of your many qualities, of some of the struggles that they have witnessed you engaged in and the way in which you have been important in their lives. They are very good letters and I treat them as genuine references.
65I have the risk assessment in the report of Dr Cunningham. In your case, it seems your descent into this violent offending was triggered by your mistaken belief as to your victim being implicated in a theft from you. It was an unusual, though not a unique, setting for the commission of a crime. Crimes arising from mistaken acts of vigilantism are certainly not unknown in the courts. But it was a particular setting which had lead to your involvement in the sorts of crimes you had never been involved in in the past and I do not ignore that.
66I am told that you are currently drug free and doing what you can to maximise your prospects by doing courses and programs and working.
67I do not understand there to have been further offences committed by you or of there being matters outstanding.
68There has been no separate submission made to me about delay. The matter has obviously been outstanding for a long time. I am sure It could not have been easy having this matter hanging over your head for that period. Insofar as I imply that you have not reoffended, I take that into account in your favour.
69Ms Clark argued that you have very good prospects of rehabilitation, relying on the fact that you have got stable accommodation available and a relationship and family support. The Crown were not as ‘bullish’ as to your prospects saying that the court really should only be quite guarded given the long-term history with illegal drugs and the nature of this offending. I am sure the sentence I will impose will have a role in deterring you. Prison is not easy for you. I believe ultimately that you do have quite realistic prospects of rehabilitation. If you can abstain from illegal drug use, of course they will be more favourable still.
Verdins
70I have mentioned already the reports of Dr Cunningham, Dr Jindall and the older reports and the various medical materials assembled in this case. I also have the clinical notes from your time in custody, in particular page 5 to which I was referred. I am not going to set out much detail from the reports. I do not doubt that you do suffer from PTSD and ADHD, as well as the substance use disorder. I do not doubt those conditions have existed for many years and that they were present at the time of the offending. In terms of reducing your culpability, it was mainly the ADHD which was being relied upon and predominantly the statement from Dr Jindall as to the impacts of that condition and to a lesser extent the PTSD. See paragraph 37 of Dr Jindall's report. So things impacting your impulsivity. Dr Jindall mentioned also the impact upon judgement and impulsivity and insight arising from drug use. That is not mitigatory and the Crown argued that it just was not possible in such a setting to find a realistic connection such as to enliven the first limb of Verdins. I do accept that I cannot disentangle the relative impacts of the illegal drug use on the one hand and the impulsivity arising from mental health conditions, but that does not remove across the board any application of the first limb. I am satisfied there is a realistic connection and hence some reduction in your culpability on a Verdins limb 1 basis. The second limb is engaged and so too the third through to the fifth. So what does all this mean? There is some moderation of specific and general deterrence. They are far from eliminated. The fifth limb from Verdins is also engaged here. There is an increased burden in prison arising from the post-traumatic stress disorder and the ADHD. Ms Clark spelt out some of the ways in which the ADHD in particular increased your burden. The sixth limb from Verdins was I believe abandoned in the running. I have considered the material afresh overnight and I still do not believe that the risk of deterioration falls at that level sufficient to engage that sixth limb. It is just too speculative.
71But I do take into account the first five limbs of that case. They are enlivened here.
The Offences
72Let me turn then to the offences.
73The agreed summary describes your offending. I am not going to repeat the agreed facts. Ms Clark was not arguing against the seriousness of this offending. She argued about the mitigatory value in your case of the misbehaviour of, and misinformation provided by, Ms Leggett. Those things she argued were the catalyst for your decision to commit these crimes.
Ms Clark argued there should be a reduction in your culpability quite independent of the Bugmy and Verdins reductions that I have allowed for. I will come back to that.74The decision of Meyers, a decision of our Court of Appeal, gives some guidance as to how to a judge might assess the seriousness of an instance of aggravated burglary.[9]That case sets out a number of matters that might be considered and lists factors which might be viewed as aggravating. The absence of an aggravating feature says nothing about the overall seriousness of an offence. These factors are not exhaustive. They include things such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
[9]DPP v Meyers [2014] VSCA 314 (‘Myers’)
75Aggravated burglary is an inherently serious crime. It is punishable by a 25 years' maximum term of imprisonment. I told Ms Leggett, and now tell you, that it is always a difficult task trying to plot where on a spectrum of offence seriousness an offence may sit. The Crown say it is a ‘medium example’ of aggravated burglary. We all employ adjectives, but differing judges or differing counsel might apply different adjectives or have different views as to where a crime might fall on the spectrum of offence seriousness. It is more profitable to look at the actual conduct itself rather than trying to place it into some arbitrary category.
76On any view of it, this was a confrontational aggravated burglary. It was committed in company with two others. The entry related to the bedroom of a female resident at the boarding house. It was not particularly sophisticated, of course it was not. Aggravated burglaries often are not, but the crime involved at least some discussion with your co-offenders. There is no doubt that you were being encouraged by Ms Leggett to take steps to recover the lost money and drugs. The locked door was kicked in by your co-accused, Slattery, and you and Leggett then entered. As to who entered first, those sorts of things have very little role to play in assessing the seriousness of the offence, especially when we are dealing with group offending as we are here. Slattery stood guard at the door. It follows then that there was a forced entry in a residential setting. Forced entry into the room of a lone female who was justifiably concerned about what had transpired the day before. Entry was with an intent to assault. It was early in the morning. Now I could not find in the case of Ms Leggett that she had in fact taken the money or drugs. On her plea, I had to be satisfied of any feature of aggravation beyond reasonable doubt. In your case, I have your interview account and I have also some other material referred to in the opening and this issue does not involve an aspect of aggravation. Rather it is mitigatory and in that sense it only needs to be established on the balance of probabilities. I am prepared to conclude on your plea that that is what happened. That she, Ms Leggett, was encouraging you to do what you did. She, the actual thief, was encouraging you to believe that Ms Nibbi was the thief. This does not absolve you of all your culpability. The trouble is you took a lead role in the physical assaults. Even had Ms Nibbi done what you suspected she had done, that could never have excused any of your conduct. It does seem quite extraordinary that now, years down the track, and you have known for years that she is completely innocent and yet you have pretty minimal remorse.
77The aggravated burglary was a serious crime and that is so despite your motivation and despite Ms Leggett’s conduct. It certainly does not fall at the low end of objective seriousness. In my view, it does fall around the mid-level. As I say, it is confrontational.
78Not every aggravated burglary leads on to other crimes. Well, regrettably, this one did. You entered as a trespasser, intending to assault and then you did just that. You took a lead role in that assault and that assault was upon a defenceless woman in her own room. The recklessly causing injury charge is no minor example of that crime. It was a sustained joint attack. Ms Leggett broke from the attack to go elsewhere within the house to obtain the metal bar to then use to strike the victim. You just kept going. Your victim was terrified and she was reduced to a completely defenceless state. She was overwhelmed by the physical attack and sustained injuries including a fracture to her hand and some facial bruising. She was hospitalised for six days.
79Then there is the common assault. As I said in Legget’s case, in a way it really was quite divorced from the physical violence. It took place once she had been completely overwhelmed. Ms Nibbi had continually protested her innocence, telling you and Ms Leggett that she did not have the drugs or the money. Well, she did not. She was telling the truth. She had, by the time of the acts and the words the subject of the common assault, been reduced to a completely vulnerable state in her own room, curled up in a ball trying to protect herself. You were then searching around under her bra, touching her bare breast, no doubt in a futile hunt for the stolen items that in fact were not there. That is part of the common assault in your case, it was not a part alleged against Ms Leggett. Ms Leggett then said ‘Check her cunt. She’s banked it’. Now, of course, it is pretty despicable for her to be covering up her own conduct by engaging in the way that she did and egging you on in the way that she had to that point. But what on earth were you thinking, entering the room with intent to assault, then physically assaulting a lone woman and then pulling down
Ms Nibbi’s garments to permit the visual inspection of her vagina by another? She is in her bedroom. She is totally innocent. She is reduced to a pitiable state and then subjected to this in the presence of two males, drifting in and out of consciousness. That was the person the subject of this despicable common assault. Physical touching to take down her clothes with statements hinting at impending penetration. Now, I am not dealing with any actual penetration or even skin on skin touching in the genital area, but it was in my view a serious example of common assault given the conduct and the fear created by the words and conduct. I think 'ugly' was employed in the other hearing and ugly it was.80I am prepared to allow for some moderation though of your culpability flowing from Ms Leggett’s use of you. Indeed, if I think about it, in a way she was using Ms Nibbi almost as a diversion. But you are not powerless. You surely should have resisted it. On what planet would it be right for you to act in the way that you did even if your suspicions as to Ms Nibbi had been 100 per cent correct? It would still represent a serious criminal offence. Ms Clark submitted you and Ms Nibbi were both victims. It is true you were likely a victim of Ms Leggett’s theft, but, make no mistake, Ms Nibbi was your direct victim in what was serious joint offending.
81These serious crimes have resulted in a significant immediate impact upon your victim. Regrettably, there has been deep ongoing impact as well.
Purposes
82I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I have already pronounced my views on that score.
83I have to give appropriate weight to the other purposes of sentencing. I am required to punish you justly and proportionately. I must also denounce your conduct. That is of real importance. This really was pretty outrageous conduct. You should be ashamed of yourself, far more really than you seem to be on the materials placed before me.
84I must pay regard to the need to protect the community from you. Community protection though can be moderated here to an extent, given the absence of any relevant prior history, and the unusual setting of your being in a way goaded into action in this case.
85I have to give adequate weight to specific and general deterrence. Specific deterrence relates to the need to deter you. Again though, given the unusual factual setting, there can I believe be some moderation of the weight given to specific deterrence.
86General deterrence relates to the need to deter other future offenders and it must be given weight in my task.
87Now I will not keep mentioning the moderations I have allowed for in a variety of areas on that Verdins basis, including some moderation of specific and general deterrence. I have already mentioned that, and I do not retreat from that proposition, but this court must pass sentences that would cause those considering committing crimes such as yours to reflect and to re-consider their stance.
88True it is, you were acting under a misapprehension. There is a need for this court to suppress and discourage vigilantism. Surely this case demonstrates how that desire to take the law into one’s own hands can go seriously, seriously wrong.
89I have to pay regard to the impact of the crimes and also the maximum penalties.
90Ms Nibbi remains deeply affected by your crimes, years removed from them.
91I have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the statistical material on the Sentencing Advisory Council site for the three crimes to which you have pleaded guilty. Statistical material has inherent limitations. I have looked at the Judicial College of Victoria online assortment of sentencing cases for aggravated burglary, recklessly causing injury and common assault.
92I am though sentencing you for your crimes and that is not a statistical or mathematical exercise. The outcome in this case can never be dictated by what has happened in other cases or by average outcomes as disclosed in the statistics. The statistics will never disclose the reason why a particular sentence was selected. They will never spell out all the matters in mitigation and in aggravation and other sentences are just that. Other sentences. There will always be key differences.
Parity
93I must though pay regard to the principle of parity of sentence which in simple terms means that like co-offenders will be dealt with in a like manner. Ordinarily, if there are no points of distinction between the related offenders or their roles or their backgrounds, then the same, or at least very similar, sentences should be imposed by the court. That is a gross over-simplification of the principle, but it does suffice for present purposes.
94The hope is, that by applying this principle, courts will remove or eliminate any justifiable sense of grievance that might exist as between co-offenders. This principle of parity is very easy to state in the hypothetical, as I have done in just a brief sentence or two. It is a much more difficult principle to deal with when actually passing sentence as a real judge, in a real case, grappling as I must here with all sorts of differences. There is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of the offenders or in their role or, as is often the position, in both. The differences in sentence, and there will be differences here, they must be capable of rational explanation.
95I cannot just ignore the sentence imposed upon Ms Leggett. My reasons are available on and they set out the way the plea was conducted and my findings on that plea. The matters in mitigation and aggravation and the matters personal to her. Also the way in which the charges were laid against her. I mentioned a moment ago a difference in the factual setting of the common assault, with her not facing the conduct relating to the search under the bra.
96Well I have heard now pleas for each of you and there are differences all over the shop, some in her favour, some not. She pleaded earlier than you. Her physical health issues were very serious indeed and they led to a large increase in custodial burden and a more favourable assessment of her future prospects despite her more serious history before the courts. She had been gaoled in the past on a number of occasions for some pretty serious offending. She was at the time of sentence however in a fairly pitiful state, reduced really to life in a wheelchair. True it is, she has encouraged you to commit these offences by egging you on and feeding you false information about who stole your items. I could not reach that finding in her case, but I can in yours and accordingly there is some reduction in your culpability owing to that setting. She had limb 5 of Verdins and a very decent allowance made pursuant to Bugmy given her most unenviable background. She also had some mitigation in her case arising from the particular circumstances of her addiction to drugs. You have five limbs of Verdins and also of course a very healthy allowance made pursuant to Bugmy.
97I commenced this topic by describing how parity stands for the proposition that like offenders will be dealt with in a like fashion. Plainly all things are not equal here. There are many differences as between the two of you. They flow in each direction, but her physical condition as at sentence was a very sizable mitigatory matter indeed.
98I apply the principle of parity to my task, and I do not pretend that I have found the exercise simple.
Totality
99These three offences arose out of this single episode. I have said already though that not every aggravated burglary leads on to violent offending. This one did. The recklessly causing injury involved a sustained joint physical attack within the room and it was divorced from the nastiness and ugliness of that common assault. No doubt each of these three crimes would have had a role to play in the overall deep impact felt by your victim. Plainly there must be a level of cumulation here.
100I take into account the principle of totality of sentence. I have taken a last look at the effect of my orders for cumulation, and I have done that to ensure that the overall effect is not crushing and is commensurate with your overall criminality.
101Prison is a disposition of last resort. Well, plainly it is required here, as was correctly conceded by Ms Clark. She was not however conceding that a head sentence and a non-parole period were inevitable here. She was arguing for a combination type sentence.
102A court must never pass a more severe sentence than is required to achieve the purposes of sentencing.
103If a combination type disposition was open to me in the sound exercise of my discretion, then of course I would be duty bound to proceed in that way. Plainly, it is not. Such an outcome as that would pay inadequate weight to the need to denounce, punish and to deter and would additionally have me virtually ignore the need to give due weight to the principles of parity of sentence.
104I will pass individual sentences. The base sentence will be passed on the aggravated burglary. I will pronounce levels of cumulation upon that base sentence and in this way I will reach a head or total effective sentence. I will then be required to fix a non-parole period.
105I can make no assumptions as to your being released in advance of the expiry of the head sentence. In fact that sort of speculation as to whether you might be released on parole is completely prohibited. That decision will rest with the Adult Parole Board. It will between you and them. Given the duration of the head sentence though, I am required as a matter of law to fix a non-parole period.
106Let me now pass sentence then. I am sorry, I have taken so long to get to this point. If you would please stand then, Mr Kerr.
Sentence
107On the charge of aggravated burglary, that is Charge 1 on the indictment, I convict and sentence you to three years' imprisonment.
108On Charge 2, recklessly causing injury, I convict and sentence you to
24 months' imprisonment.109On Charge 3, common assault, I convict and sentence you to 18 months' imprisonment.
110The base sentence therefore is the three years that I have imposed on Charge 1.
Cumulation
111I direct then that six months of the sentence imposed on Charge 2 and four months of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence and upon each other.
Total Effective Sentence
112These orders for cumulation produce a total effective sentence of 46 months or 3 years' 10 months imprisonment.
Non-Parole Period
113I fix a period of 22 months during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
114You have served already 100 days of that sentence by way of pre-sentence detention and that will be entered into the records of the court pursuant to s18 of the Sentencing Act.
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115I have told you I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences following a trial, I would have sentenced you to a term of six years' imprisonment. I would have fixed a non-parole period of four years in that setting.
116Just have a seat then for a moment. I will see if there is anything else I need to attend to. Anything else from you, Mr Gray?
117MR GRAY: No, Your Honour. Thank you.
118HIS HONOUR: Okay, good. Ms Clark, anything from you?
119MS CLARK: No, Your Honour.
120HIS HONOUR: Okay. All right. Will you go down and see your client this afternoon or not?
121MS CLARK: Yes, Your Honour.
122HIS HONOUR: Okay, good. Thank you for that. Well look I will revise these remarks as soon as I get them back. I just do not know when I will get them back. I may well get them back though by next week. I will revise them as soon as I get them and once they are revised, we will provide them to you in due course. Well that completes the matter then, Mr Kerr. So, Ms Clark will come down and have a chat to you downstairs about what has occurred here and about your rights in relation to the sentence that I have imposed. So, if
Mr Kerr can be removed now then. Thank you.
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