Director of Public Prosecutions v Kurtaj

[2024] VCC 1996

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

Case No. CR-24-00111

DIRECTOR OF PUBLIC PROSECUTIONS

v

RIFAT KURTAJ

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHEREHELD:	Melbourne
DATE OF HEARING:	11 November 2024
DATE OF SENTENCE:	4 December 2024
CASEMAYBECITEDAS:	DPP v Kurtaj
MEDIUMNEUTRALCITATION:	[2024] VCC 1996

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentencing

Catchwords:              Contravention of order intending to cause harm or fear for safety – make threat to kill – aggravated burglary (person present) - persistent contravention of family violence intervention order – attempt to pervert the course of justice - intellectual disability – Muldrock – childhood disadvantage – Bugmy

LegislationCited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

CasesCited:              Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.; Bugmy v R [2013] HCA 37; (2013) 249 CLR 571, DPP v Reynolds (a pseudonym) [2022] VSCA 263; Skeates v The Queen [2023] VSCA 226, DPP v Meyers [2014] 44 VR 486, DPP v Oksuz [2015] VSCA 169, Beljulji v The Queen [2017] VSCA 279, DPP v Herrmann [2021] VSCA 160.

Sentence:                  3 years and 4 months imprisonment, NPP 2 years and 2 months

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APPEARANCES:	Counsel	Solicitors
FortheDPP	Ms V. Worrell	Office of Public Prosecutions
FortheAccused	Mr J. Moore	Dribbin    &    Brown    Criminal Lawyers

HER HONOUR:

1Rifat Kurtaj, you have pleaded guilty to two charges of contravention of order intending to cause harm or fear for safety, two charges of making a threat to kill, one charge of aggravated burglary, one charge of persistent contravention of family violence intervention order, and one charge of attempting to pervert the course of justice.

Circumstances of the offending

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.

3The victim of your offending is Rebecca Samson (Ms Samson)[1], aged 28 at the time, and your previous partner. You had been in an intimate relationship in the latter part of 2012.

[1] A pseudonym.

4As a result of a family violence history, a final intervention order was issued at the Magistrates Court on 9 May 2023. You are the respondent in the final intervention order and Rebecca Samson and her son are the protected persons. It was served on you on 12 May 2023 and active until 9 May 2024. The full conditions of the intervention order are outlined at paragraph [3] of the prosecution opening and include not being within 10 metres of the protected person or within 100 metres of where they live or work.

5Further victims of your offending include Lucinda Samson[2], Ms Samson’s grandmother with whom she was residing for a period and your mother, Gabrielle Longmore.[3]

Charge 1 - Contravention of order intending to cause harm or fear for safety

[2] A pseudonym.

[3] A pseudonym.

6On 31 July 2023, Ms Samson was at her grandmother’s address at Walker Street  address.

7At 12:31PM on 31 July 2023, Ms Samson received a text message from you on your mobile phone. The message read “I on my way now.”

8From there Ms Samson and you engaged in a message exchange as outlined in the prosecution opening at paragraph [8]. The messages are hostile and threatening and charge 2, threat to kill, is captured in the following communication:

Sender	Receiver	Message Content
KURTAJ	R. SAMSON	I’m on my way Watch you'll see how quietly I'll sneak into your house from your backyard door If you dare call the police when I get there I promise you I'll break down the window and I'll kill all 3of you's understand (Charge 2 – Make Threat to Kill) You started this And choose to get involved

9The messages were coupled with multiple phone calls from you to Ms Samson and numerous Facebook Messenger messages. Some of these messages include you saying you were going to come and terrorize her, calling her a slut, calling her putrid and dirty, that you had bashed her time after time, but she just keeps doing it, that you were going to sit and wait and carve her up and box cutter her face.

10At 12:46PM Ms Samson called triple zero to report the threats. Soon after police attended the Walker Street address, took a statement from Ms Samson and then left.

11At approximately 3:10pm you attended the address. Both Ms Samson and Lucinda Samson were present. At 3:18pm Ms Samson called triple zero to report the matter. She told the call taker that you were outside the address and that she required police to attend urgently. She further advised that you had threatened her earlier before the phone call ends.

12Police re-attended the Walker Street address and spoke to Ms Samson. She detailed the earlier threats she had received from you, and you attending the address. Police patrolled the area but were unable to locate you.

13From 3:32PM you sent Ms Samson the following text messages:

“I swear Rebecca I see any jacks that will come to yours I swear I am going to come back
They drove past You fucking dog
Ok        I’m      on      the     run     again  coz     of        you Your dead now Rebecca

I’ve left”

14At approximately 6:15PM you returned to the Walker Street address and covertly entered the rear yard. You climbed up on top of the rear veranda and attempted to enter the property through Ms Samson’s bedroom window. You were disturbed by Ms Samson and Lucinda Samson, so you left the veranda and approached the back, glass paneled door. You forcibly kicked/hit the glass panel causing it to break and entered the residence (Charge 3 – Aggravated Burglary).

15There were multiple calls to Triple Zero, as outlined in the prosecution opening, during this period (at [17]).

16Multiple police members responded and attended the Walker Street address. On their arrival they located Ms Samson and Lucinda Samson inside the residence. You had fled the address prior to police arrival. Crime Scene Officers photographed and processed the scene. At 6:46PM you and Ms Samson exchanged the following text messages:

Sender	Receiver	Message Content
R. SAMSON	KURTAJ	Hope you bleed out
KURTAJ	R. SAMSON	Nothing serious I’ll be back soon but I told you not to call the cops

17Ms Samson explained to Police what had occurred throughout the day and showed them the numerous threatening messages received through text and Facebook Messenger.

18Facebook notifications came through at the same time alerting Ms Samson that you had posted on her Facebook account. Police viewed these posts and captured them, as outlined in the prosecution opening at paragraph [21]. In summary, the messages use language that is threatening, derogatory and obscene. Ms Samson deleted the posts and blocked your Facebook account.

19At 7:53PM and 8:16PM you contacted Northcote Police Station and tried to gain knowledge of what had been reported to police. You were encouraged to attend the nearest police station to have the matter dealt with. You did not attend a police station.

20On 1 August 2023 at 3:55PM you were located at Cramers Hotel in Preston, by Police and were arrested without incident. A safety pat down search was conducted and two mobile phones were located in your possession. While transporting you made some admissions to the offending, as outlined in the prosecution opening at paragraph [27], as captured in a covert recording.

21During this conversation you also provided the pin code to one of the phones, which allowed police to access it.

22You were formally interviewed back at the Police Station. You remained mute throughout the recorded interview but did give Police permission to photograph your injured right foot.

Charge 4 – Contravention of order intending to cause harm or fear for safety

23On 2 August 2023, your ‘oppo’ mobile phone was analysed by Police. An examination of the contents downloaded from the phone confirmed the messages/phone contact with Ms Samson on 31 July 2023.

24Police also discovered a series of text messages that you had sent to your mother, Ms Longmore, on 31 July 2023. These messages are reproduced at paragraph [31] of the prosecution opening and in summary include you threatening to ‘come there’ every night and terrorise her, calling her derogatory names and making various threats.

25At the time of sending these text messages, you were subject to a full no contact Final intervention order where Ms Longmore, your mother, was the protected person.

Charge 5 – Persistent contravention of family violence intervention order

26On 15 October 2023, Police spoke with Ms Samson to update her in relation to the investigation. She advised that she would not be providing any further statements and would not be attending any future court hearings.

27Ms Samson stated that you had been contacting her from prison. She further advised the calls were facilitated via a third party who you would contact first before the call was transferred to her.

28On 18 October 2023, police attended the relevant prison and seized, and analysed, audio recordings. You contacted Ms Samson through ‘Ali Carlos’ on 8 different occasions between the 1st and 15th of September 2023. A full summary of these conversations is included in Annexure A.

Charge 6 – Attempting to pervert the course of justice

29These audio recordings also revealed phone conversations between the 9th and 29th of September 2023 during which you attempted to pervert the course of Justice on five different occasions.

30The conversations with Ms Samson on 9, 10 and 15 September 2023, that breached the intervention order, involved you telling her to make a false statement or asking her to tell her grandmother to not participant in court proceedings. These conversations are included in the annexure.

31In addition, on 9 September 2023, you had the following conversation with your friend, Ali Hamie:

Phone Call recorded on 9 September 2023 at 5:50PM

MR KURTAJ: Can you - can you promise you'll - can you - can you promise me one thing, Ali? One thing for me, one thing.

MR HAMIE: Mm, all right.

MR KURTAJ: Can you tell Rose, buddy, if I tell you something? Not now - I'm not asking you to say anything now. I've got six months away until I go to committal, yeah.
MR HAMIE: Yeah.
MR KURTAJ: Can you tell Rose to tell the (foreign language) that she doesn't remember me going in the toilet?
MR HAMIE: Yeah.

MR KURTAJ: Huh?
MR HAMIE: She doesn't remember, O.K.

32Later in the same recording:

MR KURTAJ: The day before I go, I need you to call her and say if they're gunna the (foreign language), you know who the (foreign language) is, yeah?
MR HAMIE: Yeah, I know her.
MR KURTAJ: Huh? You know who - - - MR HAMIE: Yeah, I - - -
MR KURTAJ: - - - the (foreign language) is. The (foreign language) is the grandma, yeah. .......... the grandma to say - fuckin' to say, "Nuh, I don't remember him going toilet."
MR HAMIE: Yeah, I'll tell that
MR KURTAJ: Say, "He smashed the window and left." That's it, you know?
MR HAMIE: Yeah, all right.
MR KURTAJ: Mm. Fuck, bro, I'm fuckin' scared. If this - hey, do you reckon these cunts would listen to my fuckin' Odie Cologne

33You also had one additional phone conversation with Ms Samson on 29 September 2023 asking her to lie to the court about what happened. The conversation went as follows:

Phone call recorded on 29 September 2023 at 1:01PM

MR KURTAJ: If she comes and says - like, she never said that I went inside, but if she comes and says that I went inside, can you come to court and say, look, you never seen me come inside?
MS SAMSON: No chance.

MR KURTAJ: O.K. If she comes to court, I'm saying.

MS SAMSON: I can't, Raf. So - - -

MR KURTAJ: O.K., O.K., that's fine, that's fine, all right. I gotta go.
MS SAMSON:................ my grandma, though, bro.

Charge 7 – Make threat to kill

34Detective McKenzie further identified a phone call on 5 October 2023 where you threatened to kill Ms Samson. The conversation went as follows:

Phone Call recorded on 5 October 2023 at 3.28pm

MR KURTAJ: - - - smart arse, man? …, why are you being a smart arse?
MS SAMSON: I'm not, I just dunno what you want me to say.
MR KURTAJ: …, just do me a favour, I'm telling you, all right.
MS SAMSON: Yeah. I'm - - -
MR KURTAJ: I’m – I’m being honest with you.
MS SAMSON: I'm gunna hang up, all right.
MR KURTAJ: …, just listen to me, don't see me
MS SAMSON: What?
MR KURTAJ: 'Cause I am going to cave you, and I'm going to kill you this time.
MS SAMSON: going to see you, I know, I know, you're sick.
MR KURTAJ: Please.  
MS SAMSON: You're very sick, Raf.
MR KURTAJ:  But you're dumb, you will see me.

35You have been on remand for this offending since 1 August 2023. You therefore have 491 days presentence detention in this matter.

Gravity of offending

36It is well established that general deterrence, public denunciation, just punishment and community protection are prominent sentencing factors when sentencing for family violence offending. The higher Courts have made plain that such conduct, which disproportionately effects women, must be denounced and recognised for the fear and harm it causes (DPP v Reynolds (a pseudonym) [2022] VSCA 263; Skeates v The Queen [2023] VSCA 226). As indicated by the maximum penalties your offending is serious and your conduct totally unacceptable.

37In respect of Charge 1, you breached an intervention order that was designed to protect Ms Samson and intervention orders must be strictly adhered to. In an assessment of the gravity of the offence, I take into account that the breach of the order was multifaceted, involving both threatening messages and behaviours and an attendance at Ms Samson’s home. I also take into account the content of the messages, which included threats of violence and that the contravention of the order was not long after it was granted. Charge 4 is also a breach of an intervention order that was protecting your mother. The offending involved threats of criminal damage and comments that you’ll make her suffer. Charge 5 is a persistent contravention of family violence order between 1 and 15 September 2023 and included eight phone calls to Ms Samson. Relevantly at the time, you were on remand for contravening the same family violence order. The calls were centered around persuading Ms Samson to help you avoid a conviction of the aggravated burglary charge. The final phone call on 5 October 2024, during this sequence of calls, is the subject of Charge 7 – threat to kill.

38I have assessed the objective gravity of the aggravated burglary in the framework referred to by the parties and as outlined in the well-known case of DPP v Meyers.[4] Importantly, you were acting alone, you were not armed, your intent, as charged, was to steal, and you attended the home at around 6pm. Your offending can be contrasted with more serious factual examples, and I accept your Counsel’s submission that it does not fall within the higher categories for such offending. However, it is still serious. While not particularly sophisticated or involving detailed preparations, in the lead up to your attendance at the home you were making threats to go to the house and you did so, undeterred by the earlier police presence. After attempting to enter the home through Ms Samson’s bedroom window you approached the back and forcibly kicked/hit the glass panel causing it to break and then entered. You forcibly entered the home of someone who had an intervention order out against you and who was clearly frightened of you.

[4] (2014) 44 VR 486.

39In respect of Charge 6 the higher courts have noted that ‘the offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice (DPP v Oksuz [2015] VSCA 169).

40Assessing the offence against relevant factors, (see Beljulji v The Queen [2017] VSCA 279) I take into account that the offending was calculated to avoid conviction for the aggravated burglary. It took place between 9 and 29 September 2023 and involved five separate attempts. At the time you were on remand for the 31 July 2023 offending. It involved a degree of planning as the calls were facilitated by a third party who you would contact first before the call was transferred to Ms Samson. I take into account the requests you made of Ms Samson, as outlined in the prosecution opening.

41Overall, I accept your counsel submission that there are features that take this offence out of the most serious examples. It was not accompanied by threats of violence, though I accept the prosecution submission that it must be viewed against the history of family violence and the other earlier offending. It involved spoken words over the telephone and lacked sophistication, compared with other instances of the offence where a deception is perpetrated on the Court by the creation for example of false documents. Your Counsel also notes that you did not attempt to contact Ms Samson’s grandmother, who was the subject of some of the conversations, directly.

42As discussed with Counsel at the plea hearing, each offence does represent separate and distinct criminality. However, the totality principle is important in your case given the overall period of offending alleged and also the overlap between charges. Charge 1, 2 and 3 all occur on the 31 July 2023 and the conduct underpinning Charge 3, aggravated burglary, constitutes part of the particulars of charge 1. Also, some of the conduct in respect of Charge 6, constitutes a breach of the order, the subject of Charge 5.

43During your assessment with neuropsychologist Dr Kelly Sinclair you reflected that your offending usually occurs when you ‘don’t get things my way’ and feel angry/upset or are using drugs. You state that your former partner would have felt ‘anxiety … scared’ in response to your threatening text messages and that your mother would have been ‘horrified’ by the messages sent to her. You told Dr Sinclair, ‘I don’t think’ at the time and ‘intention is to belittle and hurt’ verbally. In terms of your mum you said that you felt you now had a better relationship but that you’ve ‘always been angry and had something against her’. In relation to the aggravated burglary, you became distracted during your account but you stated that it was ‘not a normal thing to do’ but that you had no other option and could not call the police to have your belongings returned.

44In broad terms, and I’ll return to this in a moment, Dr Sinclair identifies cognitive weaknesses and considers that they may have partially contributed to your offending given their impact on your ability to reason and problem solve.  However, they are unlikely to account for all aspects of the offending, such as the persistent nature of the contravention of family violence orders, which occurs within the context of other non-cognitive factors such as psychological conditions, personality and substance use (Exhibit 2, p14).

Plea of guilty

45Your plea of guilty on these charges entitles you to a significant sentencing discount. You entered a plea of guilty prior to a committal hearing, with no witnesses being called[5]. Your plea of guilty is a relatively early one and has utilitarian value and has spared the victims the trauma of giving evidence in Court. Your plea represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice.

[5] Noting the charges were originally separated into two processes. 

46I also take into account that at the time of your arrest you made some admissions to police and also cooperated with them. I note that you provided the PIN to your mobile phone number, without which it is unlikely that the offending against your mother (the subject of charge 4) would have been detected. Dr Sinclair notes that you expressed some regret and an acknowledgment of the wrongdoing of your actions but that your expressions of remorse and insight seemed ‘somewhat superficial in nature.’ She goes on to say that to some extent, this may be reflective of your reduced reasoning and problem solving and that psychological factors may also be contributing.

Personal circumstances

47Your personal circumstances were outlined in detail by your Counsel and are also canvassed in the reports of psychologist Ms Gina Cidoni of 10 March 2024 and the neuropsychological report of Dr Sinclair of 24 October 2024.

48In brief, you are now 35 years of age, born and raised in Victoria. You are the only child of your parents. There was a significant age gap of 30 years between your parents. Your father was of Albanian background and your mother was Fijian- Indian.

49Your childhood was marked by significant features of dysfunction. You were regularly exposed to family violence in the home. You witnessed your father hit your mother often, including with weapons. The violence occurred weekly and usually took place when your father was drunk. In addition to having a drinking problem he also had a gambling problem and consequently there were money problems in the household as a result. This contributed to the volatile home environment.

50Your father passed away when he was in his 70s and when you were aged 12. You struggled with the loss and your behaviour deteriorated, to the point where you were placed into the care of the Department at the age of 14. You lived in foster care placements from the age of 14 until 18 years of age, estimating a placement in some 10 separate units. At around the age of 14/15 you experienced sexual assaults at the hands of a foster father. You were also exposed to substance use and behaviours of your peers in residential care. Your criminal and remand history commenced in your teenage years and you spent the final years of your childhood between foster care placements and juvenile custody facilities.

51You reflected to Dr Sinclair that you felt anger towards your mother across those years and you were often in trouble for returning home to damage her property and that you had been ‘uncontrollable.’ At the age of 18 you moved into a Lead Tenant program for a short time, which was a challenging transition given that you no longer had the support from Child Protection.

52Much of your life has been marred by instability. You have had periods where you lived in government commission housing, and other times where you have been homeless, particularly after serving prison terms. Since the age of 18 years it has not been unusual for you to couch surf or to sleep in cars.

53You have a limited education history and you report childhood diagnosis of ADHD, intellectual disability and early behavioural difficulties. Given your circumstances you struggled in mainstream school and ended up leaving in Year 7.

54In 2000 at around the age of 10 or 11 you were referred to the Austin Health Child and Adolescent Mental Health Services for concerns of Oppositional Defiance Disorder. You were referred again in 2005 with assessment supporting oppositional defiant disorder or compulsive disorder, and emerging antisocial personality disorder. You did well at the alternative school Prace College in Reservoir and completed year 10 VCAL there. You have done numerous training courses in custody and a pre-apprenticeship course at TAFE but have no other formal training.

55You have a limited work history. You have undertaken mostly manual work such as bricklaying. For over the last several years, you have received the Disability Support Pension for reasons of intellectual disability. You have also in more recent years received NDIS support.

56You have an entrenched drug history. You started smoking cannabis from the age of 14 years until around 17. You also used inhalants during this period. You were chroming between 14 and 16 years. As a teenager you also took medications such as Xanax (unprescribed) which you often used in conjunction with ice, which you used regularly between 14 and 18. You had a period of abstinence until your early 20s but regularly used ice throughout your 20s, using daily when not in custody and using prior to your arrest on the current matters. Currently in custody you are on an opiate replacement therapy. Ms Cidoni considers that you meet the criteria for Substance Use Disorder involving stimulants, currently in remission in a controlled environment (at [89]).

57You were in a relationship with Ms Samson, the primary victim of your offending in about 2012 when you were 23 years of age. There has been on and off contact over the last 12 years. You have lived together as a defacto couple for periods of time. It has been your only significant personal relationship.

58As submitted by your Counsel, on the material, it is clear that you have difficulties with cognitive function and have lived with intellectual disability. You were also diagnosed with ADHD in childhood but have remained untreated. Your current NDIS plan will be up for renewal in June 2025. In addition, I note that you had a head injury at Ravenhall last year. You had a period of hospitalisation and have since had problems with balance and dizziness.

59For completeness, in respect of your physical health, you were involved in a motorbike accident some years ago and have ongoing lower back pain as a result. Separate to this, you were assaulted with a knife in December 2020 and have loss of sensation in your right hand.

60You have a relevant and extensive criminal history, including for dishonesty and violent offending, including breaches of intervention orders relating to the same victim, harass witness and make threats to kill charges, with recurring periods in custody.

Other mitigating factors

Intellectual disability and Muldrock considerations

61In her report Dr Sinclair outlines your history of contact with services from the available documentation which commences in at least 2000 (see p3-4).

62Dr Sinclair undertook a comprehensive assessment and you participated and were cooperative, rendering valid and reliable results. Your premorbid level of intellectual functioning was estimated to fall within the Borderline range of ability and possibly at the Extremely Low range given reports of diagnosed intellectual disability (p8). Your current intellectual abilities were consistent with this and in the borderline range on an overall measure (with full scale IQ score of 76, 5th percentile) although there was some variability within the profile). For example you showed cognitive strength (with performances in the low average to average range for your age) in the areas of auditory attention span and working memory capacity and verbal response inhibition and severe weakness in visual memory (ie ability to learn and remember abstract designs).

63Dr Sinclair states that your current cognitive weakness are neurodevelopmental in nature (rather than an acquired cognitive impairment, such as through brain injury) which occur alongside other neurodevelopmental disorders including reported ADHD and within the context of reported diagnosis of intellectual disability. The cause of your cognitive weaknesses is not precisely known. The observed difficulties with behavioural regulation of attention in her testing session could reflect your diagnosis of ADHD which is currently not being treated, possibly exacerbated by anxiety.

64Overall, your neurodevelopmental cognitive weaknesses would have been present since childhood and at the time of the offending. Dr Sinclair opines ‘Mr Kurtaj’s cognition and behaviour at that time are likely to have been further impacted by his reports of acute substance use and occur in the context of other reported (non-cognitive) psychological conditions, personality factors, coping strategies, and mental health symptoms, and will also influence behaviour and judgement’.

65Dr Sinclair confirms that it was not within the scope of her current assessment to provide opinions as to mental health diagnosis. She does however state that at a symptom level, current self-reports indicate moderate symptoms of depression, extremely severe symptoms of anxiety and severe symptoms of stress in the past week, which may also, to some extent be exacerbating your cognitive and behavioural weaknesses.

66Dr Sinclair opines that your moderate to severe weaknesses in aspects of intellectual function, learning/memory and reading, will impact your ability to learn and acquire everyday skills particularly those that are more complex. You are likely to require assistance to develop and support your functioning in aspects of personal, domestic and community tasks. She also states that you are at risk of misunderstanding spoken information and may be more impressionable than other people your age. It can also be more challenging for you to immediately foresee the consequences of actions particularly in circumstances that are not straightforward or clear cut.

67Dr Sinclair considers it unlikely that your cognitive weaknesses impact your ability to understand the wrongfulness of your actions. However, they do impact your ability to consider your actions, make appropriate judgements and learn from past experiences. Further, these cognitive weaknesses are likely to be exacerbated in the context of acute intoxication.

68Dr Sinclair also opines that your cognitive weaknesses may make aspects of the prison environment more challenging for you compared to most others your age. You may be more vulnerable to other inmates, that is more impressionable or more easily coerced or may have difficulty initially adapting to new routines or understand complexities. In your case, while imprisonment is unlikely to directly result in deterioration of your current cognitive profile, your ‘cognitive weaknesses may be worsened in the context of untreated ADHD and/or deteriorating in mental health.’

69Your Counsel relies upon the principles in Muldrock v R[6]. In that case, the High Court said that “the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally [disabled] offender and to the needs of the community”. He submits, and I accept, that consistent with the principles in Muldrock, those denunciatory purposes of sentencing, along with your moral culpability, require some meaningful modification because of your intellectual disability or cognitive compromise and the impact, as described by Dr Sinclair, that this has on you.

[6] (2011) 244 CLR 120 at paragraph [54] (‘Muldrock’).

Childhood disadvantage and Bugmy considerations

70Ms Cidoni finds that you have features of both post-traumatic stress disorder and ADHD.[7] She considers your PTSD is linked to your exposure to domestic violence between your parents early in life and your experience of sexual abuse as an adolescent. She states, ‘these symptoms can profoundly impact daily functioning, relationships, and overall well-being, highlighting the complex and debilitating nature of PTSD’ (at [91]). She further opines at [93] ‘his mental health conditions, particularly PTSD and ADHD, along with his history of substance use, significantly impact his ability to respond to stressors and make rational choices. PTSD results in heightened stress responses, leading to increased emotional reactivity and difficulty regulating emotions. When faced with stressors, such as arguments and conflicts, he experienced intense emotional reactions, overwhelming his capacity to respond calmly…’ She also states, ‘his polysubstances abuse likely lowered his inhibitions, making him more prone to aggressive outbursts. Emotional dysregulation, stemming from both PTSD and substance use disorders, may have escalated the intensity of his reactions during conflicts, contributing to aggressive behaviours’.

[7] Report of Gina Cidoni, paragraphs 90 and 91.

71Relying on these opinions, your Counsel submits that is a sufficient connection between your childhood deprivation, the impact it has had on your functioning as an adult and the offending behaviour. While the general principles of Bugmy apply to his case, he submits so too does the specific application of those principles (see also Director of Public Prosecutions v Herrmann).[8]

[8] [2021] VSCA 160 at [42] to [46]; Bugmy v R [2013] HCA 37.

72Based on the evidence, I accept that Bugmy has application in the specific sense. However, when considering the nature of the offending, in particular its protracted and persistent nature, along with the likely contribution of substances, I consider that it warrants a modest reduction in your moral culpability. Adopting the general approach, I accept that your subjective culpability, which I would otherwise assess as high, cannot be equated with that of a person who’s had the advantage of a stable and regular environment, free of trauma, abuse and instability. These complex factors mean I must moderate, to some extent, the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you. In addition, they must also inform the weight I give to specific deterrence and protection of the community in your case.

Prospects of rehabilitation

73Your prospects of rehabilitation must be viewed guardedly and in the context of your extensive history and the challenges and complex issues that you face.

74You are currently on remand at Marngoneet. You have some regular contacts, including with Mukhtar Mohammed, who operates the Muslim Connect program with the Islamic Counsil of Victoria. In his letter to the Court he describes how he’s worked with you previously and that you have resumed regular contact and he indicates the supports and services that can be offered to you upon release (exhibit 6). You also see your NDIS coordinator Yasmin Hagi around once a month (exhibit 7). Your NDIS support should be able to assist you secure accommodation in the community.

75You told Dr Sinclar that you are currently responsible for cleaning of the gym and gym equipment, which you complete every few days. You have also recently completed the ATLAS program and described a 10-module program which you enjoyed. I received a bundle of prison certificates and screens that support the efforts you are currently making in custody (Exhibits 4 and 5). You have also enrolled in a family violence program which is expected to commence in 2026 and which is lengthy and tailored for people with intellectual disabilities. You are also half-way through the men’s behaviour change program. Your counsel indicates that you regret and are meaningfully reflecting on your views, particularly in respect of women.

76Dr Sinclar makes detailed recommendations in her report as to assistance, treatment and modifications that would assist in your case (p15-16). The offending reflects a long-term pattern of behaviour and as such you will require ongoing support in the community including assistance to develop compensatory strategies for your cognition and impact on your behaviour. Your capacity to participate in rehabilitative therapies and therapeutic supports/programs will require modification to support your cognitive weaknesses.

77In your discussions with Ms Cidoni, you reflected that having a structured rehabilitation plan was beneficial, as the longest time you’d spent out in the community was three out of 15 years and this coincided with a Justice Plan you were given. On your repeated pattern of offending and imprisonment you stated, ‘I’m so used to it and it’s sickening.’ Ms Cidoni assess your risk of ‘FV recidivism’ as ‘very high’ given your risk factors which include your prior history of domestic and non-domestic criminal offences, behaviours during the index incident and your ongoing substance use. To reduce risk, she states that you ‘must participate in comprehensive substance abuse treatment’ which should include detoxication, counselling and relapse prevention programs (at [96]). I note that in custody you are currently taking Avanza as well as methadone.

78I consider that your rehabilitative prospects will be enhanced if you are offered, and engage in, structured treatment and support. I note that you were last released from custody in July 2023 from a straight prison term and very soon after reoffended. It is clear on the material before the Court that you require support to assist in your reintegration back into the community.

Sentencing purposes

79The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the importance and prominence of the retributive and punitive aspects of sentencing in cases involving domestic violence. Also, given your circumstances and extensive history, community protection is an important factor. I have also canvassed the complexities in your case and the need for some appropriate moderation of these principles to properly reflect your limitations and circumstances. I accept your Counsel’s submissions that individualised justice must be dispensed and that in your case, there are powerful factors in mitigation.

80I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991, where relevant in your case. I have considered the general sentencing landscape for the offences that you have pleaded guilty to, including the aggravated burglary and the attempt to pervert the course of justice.

81Make threat to kill is a serious violence offence pursuant to Schedule 1 Clause 3 (b) (iii) of the Sentencing Act 1991. You fall to be sentenced as a serious violent offender for this offending, as you have prior convictions for making threats to kill that resulted in terms of imprisonment. Consequently, this means that on these charges, that is Charges [2] and [7] I must regard the protection of the community from you as the principal purpose for which the sentence is imposed and, while totality remains relevant, it must be applied in accordance with s.6E of the Sentencing Act. I note that the prosecution have not sought, and I do not propose to impose a disproportionate sentence on these charges.

82In sentencing you, I have also taken into account the principles of proportionality, parsimony and, as already discussed given the nature and temporal relationship between some of the offending, totality. I have also taken into account your risk of institutionalisation. Ms Cidoni notes in her report that you show signs of institutionalisation with your long history of imprisonment beginning as a teenager. Difficulties readjusting and coping in the community have become entrenched and prison, as a punitive measure, provides little deterrence (at [100]).

83There was no dispute that the only just and appropriate sentence in this case is a term of imprisonment comprising a head sentence and non-parole period.

Sentence

84Formulating a sentence in your case has been a challenging and complex task. Synthesizing all relevant factors you are convicted and sentenced as follows –

85Charge 1, contravention of order ( 31 July 2023), 10 months’ imprisonment; Charge 2, make threat to kill, 12 months’ imprisonment; Charge 3, aggravated burglary, two years and two months’ imprisonment; Charge 4, breach intervention order, eight months imprisonment; Charge 5, persistent breach of intervention order, 12 months’ imprisonment; Charge 6, attempt to prevent the course of justice, 18 months’ imprisonment; Charge 7, make threat to kill, 12 months imprisonment.

86Orders for cumulation, Charge 1, two months’ imprisonment, Charge 2 three months’ imprisonment, Charge 4, one month imprisonment; Charge 5, two months' imprisonment; Charge 6, three months' imprisonment; Charge 7, three months' imprisonment. 

87This results in a total effective term of three years and four months imprisonment. I consider that the minimum term justice requires you serve in all the circumstances is 2 years and 2 months and I fix this as a non-parole period.

88Pursuant to S.18 of the Sentencing Act I declare that you have served 491 days in presentence detention.

89Pursuant to S.6AAA I indicate that but for your plea of guilty I would have sentenced you to 5 years with a non-parole period of 3 years and 7 months.

90Pursuant to s.6F on charges 2 and 7 I cause to be entered in the records of the Court that you are sentenced as a serious offender.