Director of Public Prosecutions v Leggett
[2024] VCC 1272
•19 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02402
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CASEY JOY LEGGETT |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2024 |
DATE OF SENTENCE: | 19 August 2024 |
CASE MAY BE CITED AS: | DPP v Leggett |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1272 |
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 visually inspect vagina for items alleged to have been stolen - 42 years old at time of sentence - sizeable enough criminal history - Guilty plea - R v Verdins [2007] VSCA 102 - Limb 5 - Disadvantaged background: Bugmy v The Queen [2013] HCA 37 - Physical health issues including wheelchair bound status – Significantly increased custodial burden - Drug addiction; R v Lacey [2007] VSCA 196 and R v McKee, R v Brooks [2003] VSCA 16
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Ms A. Burnnard | Law & Advocacy Centre for Women |
HIS HONOUR:
1Casey Joy Leggett, you have pleaded guilty to three charges laid on the indictment that has been filed in this Court being one charge of aggravated burglary, one charge of recklessly causing injury and one charge of common assault.
2The offending occurred in April of 2021. You are now 42 years of age and you have admitted a criminal history of some relevance to my task.
3The summary sets out the offence maximum penalties and I will not restate them other than to say aggravated burglary has a 25-year maximum term of imprisonment. It is an inherently serious crime.
4The prosecutor, Mr Gray, opened this matter to me last Friday in accordance with the written summary of prosecution opening for plea, which was dated 5 August 2024. Your counsel, Ms Burnnard, told me that this was an agreed summary. That agreed document was marked as Exhibit A on the plea. The trial indictment had other charges and obviously some very different factual allegations. They are not the subject of the agreed summary or the charges on the plea indictment. It is of course of critical importance that I sentence in accordance with the agreed summary and on the basis of the charges laid on this plea indictment.
5There is no utility in my repeating all of the agreed facts. I will sentence pursuant to that agreed document, as well as the photographs that were referred to.
6Accordingly then, I will give only a very brief summary of the facts so that my reasons and my ultimate sentence might be comprehensible to anyone who accesses these remarks when they come to be published, as they will be.
7Your victim was Isabel Lakeland[1]. In April 2021, she lived at the same boarding house that you, your then partner, Dylan Slattery, and his mother lived at. This was at 5 Melaleuca Drive in Hastings. I say ‘boarding house', it was in reality a brick veneer house with multiple bedrooms which were sublet. There were shared common facilities including bathrooms and a kitchen.
[1] A pseudonym
8A man named Adrian Kerr was a frequent visitor to the boarding house. You, your partner, Dylan Slattery, Ms Lakeland and Kerr were of course all known to each other.
9On the morning of Friday 9 April 2021, you, Kerr, Slattery, Ms Lakeland and another man, Wieben, went to 7 Lae Court in Hastings. It was Kerr who had the connection to that house. Kerr became aware at some stage that his bag containing some drugs and cash was missing and he suspected Ms Lakeland had taken those items. She said that she had not. He 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. Kerr went back to the boarding house at Melaleuca Drive to search for the bag, to no avail. He later returned to Lae Court and then the group returned back to the boarding house.
10There was a later exchange between Ms Lakeland and the group, including you, in Slattery’s room. There was obviously some tension in relation to the lost items and it is obvious that Ms Lakeland, for whatever reason, fell under suspicion. She returned to her own room, locked herself into her room and then went to bed.
11Over 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.
12That was where she was at 6 am the next morning. Her door was shut. She had locked her door, for good reason.
13You, your partner, Slattery, and Kerr were in the room at the premises shared by you and Slattery. Ms Burnnard told me it was in fact Slattery's mother’s room. It really does not matter who actually occupied the room.
14You were encouraging Slattery and Kerr to recover the missing money and drugs and Slattery went to Ms Lakeland’s room accompanied by you and Kerr. Slattery then kicked open the door and you and Kerr then entered as trespassers. Slattery stayed at the door to ensure no-one else entered. You 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 Lakeland demanded that you all get out of her room. You ignored her. Instead, a nasty physical attack was launched upon her by Kerr. That is described in the summary. She was kicked and punched to the head and body and items were thrown. You threw items which struck her 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 you left to obtain a weapon and returned with a metal pole which you applied in multiple strikes to the victim. Her hands were targeted. At one stage you threw a knife at her striking her in the back. During the physical assault you and Kerr made demands for Lakeland to give back Kerr’s money. She repeatedly told you she did not have it. The physical attack lasted a sizeable period. The complainant estimates approximately 40 minutes. The precise time is not critical. It was plainly a sustained attack. That much is accepted by your counsel. I was advised that the recklessly causing injury charge relates to the physical force employed by both you and Kerr within that room. You were complicit in all that took place.
15You then said to Kerr 'check her cunt she’s banked it', a reference to drugs and cash potentially being secreted within her body. Ms Lakeland’s pants were pulled down from the waist band and you attempted to locate the drugs and cash by visually inspecting her vagina.
16 She was drifting in an out of consciousness and heard voices saying ‘we’ve killed her.’
17You and the others fled. She regained consciousness and realised her pants were down and her shirt had been pulled up.
18Police were called and they attended. She was found in her room and 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.
19She spent six days in hospital.
20You went to the police on 7 July and were interviewed. The summary sets out some of the answers. I have read the entire interview. You were not truthful with the police but of course that is not a matter in any way in aggravation. You seemingly blamed Kerr. I understand that he blamed you. The truth is of course you were complicit in the acts which took place within the room.
21There is a lengthy chronology of the matter before the court set out at pp7 and 8 of the agreed summary. You pleaded guilty at a late enough stage with resolution reached in April of this year. It is though a bit more complex than that, given the earlier plea offers and the existence of serious offences which did not ultimately proceed. I will say more about that later in my reasons.
22You had spent no time in custody until my remand of you on Friday of last week. Your co-accused, Kerr, is heading for trial, as is his right. The other co-accused, Dylan Slattery, your partner at the time, died in May 2021, shortly after this event.
23So much then for what is only a brief summary of the agreed summary in this matter. As I have said already, I will sentence pursuant to the more detailed agreed summary dated 5 August 2024 and those other matters I have referred to including the photographs. I must have regard to the impact of your crimes. I turn now then to Ms Lakeland’s impact statement dated 14 August and marked as Exhibit B on the plea.
Impact
24The impact statement was read aloud by Ms Lakeland last Friday. She had been advised not to read a few sections within that document which it was accepted were not admissible. I won’t have regard to those agreed matters. The transcript will disclose the nature of the agreement. She was plainly upset in the reading of it and in such a state, not unnaturally, she supplemented some of the written materials with some asides made along the way. I will not have regard to the additions made by her in the reading of the document.
25I will have regard only to the admissible portions of the victim impact statement placed before me.
26I see no need to set out all of the details of the impact. The impact statement does that. The crime of aggravated burglary is renowned for the impact that it causes upon victims. For the sense of invasion and the erosion of feelings of security and safety. All those things exist here. Her door was kicked in. She was then attacked physically in her own room. She spent six days in hospital. The common assault was a most degrading exercise, for her pants to be pulled down to permit visual inspection of her vagina in the presence of others. She was at that point in a 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. She thought she was going to die. She has lost the ability to trust and 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 Ms Lakeland, and I must take into account.
In Mitigation
27Ms Burnnard conducted the very thorough plea in mitigation on your behalf last Friday. She made a number of oral submissions. She also relied upon a detailed written outline of submissions for the plea dated 9 August 2024. There was a range of other written materials filed, amongst them a report and addendum from a psychiatrist, Dr Hanratty, and a range of medical notes, letters and hospital discharge summaries. There was also a letter from the mentor co-ordinator for ‘Women and Mentoring’ and a letter from an outreach and support worker at the organisation known as ‘Flat Out’. The author of the ‘Flat Out’ report, Ms Annika Wright, was present on Friday and she is joining the link today. There was a new worker from 'Women and Mentoring' in court on Friday and she is joining the link today. That is Ms Cameron.
28Either by reference to the written materials filed on the plea or the oral submissions supplementing those written materials, your counsel provided much detail to me of your family, educational, work, drug use, relationship, physical health issues and your past criminal history. She took me in detail through the medical materials and worked her way through the quite confronting medical or hospital chronology that has arisen since May 2022.
29She made some submissions to the court as to your conduct since, 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 in play.
30I have had Ms Burnnard before me previously and by way of strong compliment, it is plain to me that she always engages in very meticulous preparation for a plea in mitigation. Clearly here, she and her instructing solicitors have devoted a great deal of time and effort obtaining materials relevant to the plea. There were some matters which were outstanding including some materials the subject of an FOI request to Justice Health relating to your past prison sentence. There was also some concern in their minds as to whether they were free to place before this court some of the Child Protection or Community Services Victoria documents that they had come into possession of without seeking leave from the Children’s Court to do so. It is plain to me that had she persisted in any application to adjourn the matter, that such materials as she referred to would have been produced. There was a voluminous file from Child Protection, she spoke of some 1400 pages. I was not concerned as to the absence of the written contemporaneous materials, as I have had experience of Ms Burnard previously and I simply would not doubt her account of those materials. The fact that you had left home at the age of 13 or so was not challenged by the Crown. It seemed to me on the materials placed before me to be obvious enough that the principles derived from the case of Bugmy[2] would be enlivened and I gave that indication. Ms Burnnard withdrew any application to adjourn the plea part-heard. She then went on and conducted her customarily excellent plea on your behalf. She relied chiefly upon the following matters in mitigation:
· Your guilty plea and co-operation with the police;
· The presence of some limited remorse;
· Your disadvantaged background (Bugmy);
· The mitigatory effect of drug use in the unusual circumstances of this case.( see Lacey[3], see McKee and Brooks[4]);
· The application of the fifth limb from the well-known decision of Verdins[5];
· An increased custodial burden arising from your physical health issues. I note that she abandoned the submission as to the likelihood of being held in protection and that itself posing an increased prison burden.
[2]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
[3]R v Lacey [2007] VSCA 196 (‘Lacey’)
[4]R v McKee, R v Brooks [2003] VSCA 16 (‘McKee and Brooks’)
[5]R v Verdins [2007] VSCA 102 (‘Verdins’)
She conceded that the offending was serious and that a prison term was inevitable here. However, she argued in favour of a combination type order. That is to say, a period of imprisonment followed by release onto a suitably conditioned community correction order. Failing that, a head sentence with provision for the possibility of a decent period on parole.
Prosecution
31The prosecutor, Mr Gray, had prepared some written sentencing submissions dated 15 August. 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.
32He made submissions as to the seriousness of the aggravated burglary, it being confrontational in nature. The prosecution submitted you were encouraging the others to enter the room and then joined in the physical attack. They argued that the common assault was a serious example of the offence. You had made full denials and blamed the co-accused in the course of your interview. The prosecution did not accept that there was any reduction in culpability arising from drug use. Nor did they accept in their written submission that the principles from the case of Bugmy were enlivened here. They did retreat from that position. It was rather, they said, a matter of weight. They made submissions as to the relevant sentencing purposes.
33The 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. The Director did not accept that a combination type disposition was open in this case, arguing that it would not adequately reflect the level of criminality engaged in here. Secondly, the prosecution argued that owing to your physical limitations, you would have real difficulty attending for appointments and treatment under the order.
34I am not bound by the submissions made as to sentence by either counsel. I am after all exercising a sentencing discretion. I have to reach my own view as to the appropriate sentence in this case. I will come back a bit later to consider the various submissions made by the parties. I say now though that if I thought a community correction order was a disposition that achieved all the purposes of sentencing, I certainly would not let your physical issues drive me in the direction of a more punitive outcome. Nor do I accept that the materials suggest you could not attend for appointments or treatments under such an order. Ms Wright attests to your level of resilience. I will come to discuss these various matters raised in mitigation and the submissions made by the parties.
Background
35Firstly, though I will turn now quite briefly to your background. Briefly as I 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 first report of Dr Hanratty. It is also covered in great detail in Ms Burnnard’s excellent written submissions. She had the advantage of looking at a number of contemporaneous materials and her submissions were based on those materials as well as your instructions to her.
36You were born in November 1981. You are now 42 years of age. You were one of three children. There were a number of half siblings. It was plainly not a good home situation. You left home at a very young age, the age of 13, owing to the chaotic lifestyle at home. I am prepared to accept that there was violence, sexual and verbal abuse and also a permissive attitude to drugs and to crime. Having left home, you rotated through other people’s homes. Drug use was frequent. You took to drugs very early on in your life. There were periods of detention in Youth Justice. You had been under the care of the Secretary for a significant period.
37On the educational front, you had been bullied at school and ultimately you completed Year 10 whilst you were in detention. On the employment front, you worked at two KFC outlets for some years.
38Drugs have obviously been very problematic for a number of years.
39You went to Western Australia for a number of years in your mid-20s and that coincided with a period of stability in your life. That was from about 2001 to 2008 with your two children born in that period. You remained out of trouble and you were abstinent from illegal drug use for some years in that timeframe.
40I believe you have no contact with the children. They are about 18 and 20 and they live now in Tasmania.
41You are in very poor health. You are wheelchair bound. I see no point setting out all of the detail of your medical history. There are many materials before me marked as a bundle, Exhibit 5. It is obvious that your health conditions will impact upon the burden of imprisonment felt by you. That is not in dispute and so I see no need to descend to the detail of that material here, or even later in these reasons. It has been a dreadful couple of years on the health front for you.
42You have a long enough criminal history, and it is obviously of some relevance to my task. I am not going to set it all out. I do note that there are some gaps in that offending over the years. There are a number of appearances before the courts over the years for offences of differing levels of seriousness. There are dishonesty, weapons, violence, bail and drug offences. There are robberies, and one armed robbery, as well as trafficking and incitement to trafficking. You have breached an intensive correction order, a suspended sentence and a community-based order. You have received also a handful of prison terms over the years as well as detention when younger. I was told by Ms Burnnard that you satisfactorily completed parole on two earlier occasions and that you did not apply for parole in relation to the most recent sentence.
43I was told that you served out the entirety of that two-year term imposed in June 2019 for a number of charges including trafficking in drugs to a child and supplying drugs to a child for use by that child. That you did not apply for parole as you had issues with accommodation. You were released in September 2020 and worked as a sex worker to support yourself. You met your new partner, Dylan, up in Colac where you lived for a time. You moved with him and his mother to Melbourne, then to Frankston and then to Hastings. It was in Hastings that this offending occurred. That relationship between you and Dylan was not a good one and it had some issues in terms of family violence.
44As to that prior criminal history, I want to make plain you do not fall to be sentenced a second time for any of these past matters. You received those sentences and you served them. However, I do have to make judgments as to your risk of re-offence and the extent of the need to deter you and for that matter, to protect the community from you. I have to make judgments as to your future prospects of rehabilitation.
45Since the offending you have had very significant health conditions, and your counsel, Ms Burnnard, walked me through that history of hospitalisation and hospital visits set out in Exhibit 5. It really has been a dreadful couple of years.
46There is obvious support on hand with letters from organisations that have supported and will continue to support you. Each was represented by a worker. You still also enjoy some support from your partner, Simon.
47I have dealt only really quite briefly with your background. I have not covered every detail that has been placed before me or which is referred to in the written materials placed before me.
48An 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.
49Ms Burnnard made it plain that she was relying upon the principles derived from the High Court case of Bugmy. These principles have been re-stated in a number of cases since, including the case of Herrmann[6] in our Court of Appeal. The prosecutor referred to that case. Ms Burnnard made it clear that she was relying upon those principles in the general fashion described in that case law. Ultimately, no issue was taken by the prosecution on that score. They retreated from their written submission, which challenged the application of these Bugmy principles.
[6]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
50The application of these principles does not depend upon proof of any causal connection between the background and the offending.
51I announced on Friday my provisional view that the principles from Bugmy would apply to my task, and I have not altered my view. I remain satisfied to the required standard that your background was disadvantaged. That there was a level of dysfunction and instability in your developmental years. You were exposed to violence and sexual abuse in your early years. You had the absence of any truly positive role models in what were your formative years. There were many things that most of us would take for granted, that simply did not exist in your early life. It is hardly surprising that you have led a faltering existence. Yours was clearly an unenviable background. I give it full weight in the way in which that phrase is employed in the case law, including cases of Bugmy, Herrmann and Sabatucci[7], Newton[8] and Dhal[9].
[7]Sabbatucci v The Queen [2021] VSCA 340
[8]Newton (a pseudonym) v The King [2023] VSCA 22
[9]Dhal v The King [2023] VSCA 289
52I take your background into account, as far as I am able to, including as giving rise to some reduction in your culpability. There can be a softening of some of the retributive and deterrent purposes of sentencing.
53The case law makes it clear enough though that social disadvantage will not attract the same weight in every case, or in the same fashion. I raised that issue on Friday in discussion with the parties. 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[10]. Our backgrounds leave their mark and yours most certainly has on you.
[10]DPP v Terrick [2009] VSCA 220
54You are now 42 years of age. You have a reasonably lengthy prior criminal history. This was serious offending. There are limits to the application of these Bugmy principles. I apply them though to my task.
Guilty Plea
55I turn to some of the other matters raised on the plea by Ms Burnnard. Firstly, the fact of your guilty plea and the stage it was entered. There was a fair bit of discussion about the way in which the matter came to be settled and the prior plea offers which had been made by you and rejected by the Crown. I do not want to get too caught up in all of that. Your guilty plea is important and that would be so even if I took the view that it was a late or even a very late plea. I do not, by the way, treat it as a late plea at all. The fact is the rape charge was always the stumbling block. The Crown had rejected the earlier offer made in June of last year, an offer to plead to aggravated burglary and recklessly causing injury. They were obviously holding out for some representation in relation to that final phase, which at that point was covered by the rape charge. The same state of affairs existed when in late March of this year, you made what your counsel conceded was an optimistic plea offer to aggravated burglary and common assault in lieu of the recklessly causing injury. Predictably, that too was rejected. I should say I was told that neither of those plea offers had the same factual basis as applies to the recklessly causing injury now before me. I mentioned in the course of discussions the existence of the defence response filed for trial, but on reflection, that February 2024 document has no role at all to play in any judgment I make about the stage of the plea or the presence or otherwise of remorse in this case. Once your first offer had been rejected, you were perfectly entitled to take the stance you did take in that filed document. The trial was listed in April of this year and it found its way into the reserve list. It was not going to get a start and that is when minds were turned to the rather creative settlement which ultimately came to pass. That offer in April was the first time you had made any offer in relation to the final phase in the room, namely the pulling down of the victim’s pants and the genital inspection. In April of 2024 you offered to plead to the common assault and the factual basis in relation to the three charges was sorted out and the matter settled.
56So whilst it was a late plea at least chronologically speaking, I do not believe it is fair to treat it in that manner at all. You had been offering to plead to the aggravated burglary since June of 2023 and with some liability for aspects of the physical attack as represented by your plea off to, firstly, recklessly causing injury and, secondly, to the common assault. I will treat it as a relatively early plea in the circumstances given that the stumbling block was always the rape and that that matter has not proceeded in your case. It is not however the situation as sometimes exists where your earlier rejected plea offer represents the way that the matter has ultimately proceeded. That is not the position at all.
57The fact is that by pleading guilty, you have taken responsibility for your crimes at what I will treat as a relatively early stage.
58You also were co-operative with the police in that you attended for interview and then answered their questions politely it would seem. I take that into account in your favour as well. The interview though really was not your strong point, in that you were not truthful with the police. That is in no way a matter in aggravation. It is just that I do not attach much weight to your counsel’s submission that you made admissions against your interests, see paragraph 27. It is true you put yourself in the house and in the room, but you were doing so to justify your conduct. You 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 only attended to protect her. You blamed Kerr. You denied saying anything about checking her vagina or having any role in the removal of your victim’s clothes. Virtually every aspect of the agreed summary placed before me now was denied by you in the course of that police interview. I will say more about the interview when dealing with the issue of remorse.
59Back then to the mitigatory effect of your guilty pleas.
60As a result of your guilty plea, the time, cost and the effort of a trial up in this court where you challenge the allegations has all been avoided. You admit the allegations and do so without requiring proof of them from witnesses. Of course, you cannot control what your co-accused does. He is running to trial and that is his choice and his right. Witnesses will no doubt be called in his case in this court. If he is found guilty though, he will not be able to point to the utilitarian benefits of a guilty plea. You can. No witnesses will be called in this court in the case against you, courtesy of your guilty pleas. Ms Lakeland has been spared that experience in your case.
61You have facilitated the course of justice, and you must be rewarded for doing so.
62I take these various matters into account in mitigation.
Remorse
63Ms Burnnard, I believe, recognised some of the difficulties in relation to a finding of remorse. There were really no expressions of remorse in the interview. You denied any wrongdoing. Of course, that interview was years ago now and there is much water under the bridge since. Mindsets can alter. You have pleaded guilty, and a guilty plea can be indicative of some remorse but that is not always the position. Your counsel was not, by the way, suggesting that there was any fulsome remorse in this case and when I asked her to take me to any indication of remorse in all of the materials, she pointed to paragraph 48 of the report of Dr Hanratty as at least indicating some degree of empathy for your victim. It was in the same paragraph where you spoke of your victim being jealous of you and having stolen some of your belongings. I accept that may have just been a matter of the unfortunate positioning in that one paragraph of two separate statements from you to the expert. The trouble is though that there are a number of other refences in the expert report which cause me to doubt the presence of much genuine remorse in this case. You spoke to Dr Hanratty on 25 June 2024. The expert describes your general unwillingness or inability to describe what took place in the lead into the offending and during it. At paragraph 19 in discussion with the expert in late June, so less than two months ago, you told him you did not encourage the others to go to the victim's room and that you had gone there to help your victim. That is simply not what took place at all. At paragraph 25 you disputed the matters put to you by the expert from the agreed summary. At paragraph 93 there were some statements made by you again disputing aspects of the summary.
64I have no doubt you wish you were not in your present predicament. Your life has altered very significantly in the last year or two and you are understandably at a very a low point. Self-pity for your own position, though understandable enough, does not equate to remorse. Remorse relates to contrition or regret for the commission of the crimes against the victim, and I see little evidence of that.
65There really is little remorse on display in this case. I am prepared to treat your guilty plea as indicative of some degree of remorse and I take that into account.
Rehabilitation
66I turn now to your prospects of rehabilitation. This was serious joint offending committed upon a vulnerable woman. You were not some foolish teenager out on their first criminal foray. You were a mature person with a fair bit of criminal history behind you. You have had long terms issues with drugs of dependence and not even being sent to prison in the past has deterred you from offending. You were released from prison in September 2020 after serving the two-year sentence imposed for trafficking drugs to children. You have previously breached court orders designed to keep you in the community. Your life was in disarray in the lead into this offending. In the lead into the offending, you were working as a sex worker and back using drugs of dependence.
67But for the disastrous deterioration in your health over the last couple of years, it would be very hard indeed to have any degree of optimism as to your future prospects. However, much has altered since the offending. I will not work my way through every aspect of your counsel’s submissions to me, but there was the eviction from the boarding house, the relationship ending with Mr Slattery, then his death, and then the ongoing health issues which your counsel took me to in great detail. So the chronic osteomyelitis of your left femur, the septic arthritis, the deep vein thrombosis, rectal bleeding, excessive vaginal bleeding and iron deficiency. From May of 2022 there have been many hospital visits and admissions, some of them for long periods. There have been a number of surgeries and procedures conducted. Your health has been very poor indeed, and it is currently, and the upshot is that you are left with a permanent functional disability. It is a confronting change in your condition. You are not fit for any further surgical interventions. It seems then that you are wheelchair bound for life. It follows then that you have very limited mobility and, prior to my remand of you, mostly stayed at home. You have had great difficulties in living a normal life. You have had to use a bucket to wash as the bathroom was upstairs. There has been some reliance on your new partner, Simon, who as I say was present in Court the other day and joins the link today. That relationship is described in some detail in the materials.
68These health issues represent a very sizeable impact upon the way you live your life. They surely will have an impact on your capacity or desire to commit crimes in the future.
69I have the risk assessments and the report of Dr Hanratty and I will deal with those reports shortly.
70I am told that you are currently drug free. There was some debate as to whether you had been drug free since the offending or not. It seems clear to me that that is not the position. The addendum report comments on that issue. Ms Burnnard submitted that you had been drug free since February 2023, not since the offence. I am not at all troubled by the seeming inconsistency in your account as to when you last used illegal drugs. Nothing hangs on that detail at all. A relapse or relapses would be perfectly normal and perfectly understandable.
71What is not in dispute is that you have not further offended and that there are no matters outstanding. Whilst no separate submission was made to me about delay, and it was not being suggested that there was any impropriety or unduly leisurely approach on behalf of the police or the prosecution agency warranting some censure from the court, I have no doubt that it could not have been easy having this matter hanging over your head for such a period at the same time as your health was deteriorating in the way that it has. One favourable consequence of the delay is the absence of any further offending since April 2021. That is of course a positive and I take that into account in your favour.
72Not only do I have the physical health issues which will play a role in impeding or discouraging further criminal conduct, I also have your engagement with Flat Out, as well as the Women and Mentoring organisation. I have letters from each organisation, and as I said, each were represented at the plea with the author of the Flat Out letter, Ms Wright, in attendance and a new mentor from Women and Mentoring, Ms Cameron. It is true that Flat Out have previously assisted you upon your exit from prison in 2020, but it is plain that you have a very good relationship with Ms Wright. She has been providing excellent support to you and that will continue whether you are in prison or not. Her letter is impressive. It spells out the steps that you have taken as well as the impact upon you of your heath deterioration. It is plain that life has been a massive struggle for you. You have fallen through the cracks in the healthcare system to some degree. She has observed your struggles and your resilience, and she is impressed by what she sees. It is a very strong reference indeed. It was Ms Wright who referred you to Women and Mentoring and that of course is also a positive.
73I do not recall Ms Burnnard using any precise adjective to describe your prospects, but she plainly was submitting that you had some realistic prospects of rehabilitation, prospects that in fact were much improved from the way they might have been assessed absent the sad health developments. I must say I would be far more guarded but for the health predicaments which have dealt you such a poor outcome and the long delay during which you have remained offence free. I am sure the sentence I will impose will have a role in deterring you and I recognise that the sentence will not be easy for you at all. I will deal with the increased prison burden in one moment. Despite your past history before the courts, your long-term drug use and failure to turn away from crime in the past, and despite the seriousness of these matters and the limited nature of remorse on display, I am in fact prepared to find that you do have quite realistic prospects of rehabilitation into the future. I believe your risk of reoffence will be reduced. It will still be critical for you to desist from illegal drug use in the future.
Dr Hanratty
74I have mentioned already the report of Dr Hanratty on a number of occasions, as well as the addendum to that report. I spoke in the course of the plea about some unusual aspects of that report. I do not know why he believes it is open to him to provide an opinion as to what took place within the room and why. See paragraphs 110 and 111. There are many aspects of the report which do not involve the provision of any expert opinion at all. As to paragraph 113, I regard that as highly speculative indeed. I do not doubt that drugs of dependence do bring about disinhibition, but the view he proffers that the offending would not have taken place without them is pure guesswork. There were aspects of hostility to or dislike of the victim and the belief that she had stolen drugs and cash. I am not going to act on the basis of guesswork by him as to what took place and why as he works his way through various facts and competing accounts as though it is his job to provide some answer to those questions. There are useful aspect of the reports though including the level of detail provided by him as to your personal background as well as the risk assessments. I say 'assessments' as the addendum contains an updated assessment of the risk given the fresh information available to him as to your physical incapacities. There are also recommendations for your ongoing treatment. I am prepared to accept his opinion as to the diagnosis of
post-traumatic stress disorder and the various other disorders spoken of in paragraph 101. It seems you probably have some traits of antisocial personality disorder as well. I am not going to set out much more detail from the report. Though I did have some reservations about aspects of the report, I do accept that the fifth limb from the case of Verdins is engaged here, that there is an increased prison burden arising from the post-traumatic stress disorder. See paragraph 127 of the original report and also paragraph 21 of the addendum. The sixth limb from that case was not relied upon.75Indeed, your counsel was explicit in disavowing any reliance on any of the other limbs from that case. So I give the fifth limb some modest weight in that this condition will make prison more burdensome for you. I take the other conditions spoken of into account in a non-Verdins fashion.
Increased Burden
76I have just spoken a moment ago of the increased prison burden posed by your post-traumatic stress disorder. I have made an allowance for that. There is in my view a much more tangible heightened prison burden arising from your physical incapacity and your various medical issues. Your counsel retreated from the suggestion that I could factor in your status as a protection prisoner, conceding that was entirely speculative, whatever your past experiences may have been. Your health issues are very different. I have already spoken of them in some detail. I do not see the need to set them all out or trawl my way through the materials or the reports or the chronology placed before me. It is obvious that prison will be a good deal more burdensome for you owing to your medical issues. You are wheelchair bound. That will throw up all sorts of physical challenges for you in a prison setting. You also of course have long term relationships with various medical practitioners. Though, as luck would have it, you would still have access to St Vincent's and some of your usual treaters even in a prison setting, it won’t be as simple as making an appointment and attending under your own steam. It will not be as easy as that at all. Ms Wright from Flat Out speaks of some of her concerns, and I don’t ignore them.
77Plainly, prison will be more difficult for you than for one without your various health issues and I take that into account in your favour.
Drug addiction
78I have spoken already of the reduction in culpability arising from your disadvantaged background. Part of that Bugmy allowance connected up with the poor examples provided to you by adults in your life and the normalcy given to the use of drugs. It was hardly that surprising that the dysfunction in your early life including traumatic events and exposure to drugs would lead to the use of drugs at a young age and then onto a faltering trajectory in your life. Your counsel relied upon your drug addiction and drug use in mitigation of this offending.
79Now I do not doubt that you were to a degree disinhibited by drugs on the day of offending. Normally that would be of no mitigatory value at all and would provide only explanation or context. I do accept that your drug use commenced at a very young age and in the family setting I have described. To that extent, I believe you can be distinguished from an older person who, as an adult, has made a free and rational choice to use drugs. The case law in this area suggests that such a person, has an understanding as to the predictable consequences of that choice made as a mature person. Such a person then is making a free and informed choice and what follows, follows, owing to their choice. I have often wondered about the correctness of that statement. The extent to which even a mature adult offender has any true understanding as to how low he or she may sink in the future when first using drugs is in my view very much debatable. In any event, you were very young when you first used drugs. I doubt that you could really have had any sense of where this could all lead you.
80These crimes are however far removed from the sort of property crimes where significant allowance can flow. You were not some street level addict trafficking drugs or committing a soft target robbery or armed robbery to support a miserable lifestyle where the link is so clear. This was a serious aggravated burglary and serious physical assault and though you would have been disinhibited to some degree by having used illegal drugs, it cannot provide much by way of mitigation here. I believe I can in fact give only some very limited weight to the Lacey or McKee Brooks submission made on your behalf with only some very modest reduction in your culpability over and that extended by virtue of my Bugmy allowance.
The Offences
81Let me turn then to the offences.
82The agreed summary describes your offending and I am not going to repeat all the agreed facts. Your counsel concedes the seriousness of this offending.
83The manner of assessing the seriousness of aggravated burglary has been discussed in a number of cases including the decision of Meyers.[11]That case sets out matters that might be considered. It is a list of factors, the presence of which might be viewed as aggravating. The absence though of an aggravating feature says nothing about the overall seriousness of the offence. These Meyers considerations as to how a court might best assess the seriousness of an aggravated burglary are not exhaustive considerations. 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.
[11]DPP v Meyers [2014] VSCA 314 (‘Myers’)
84Aggravated burglary is an inherently serious crime. It is punishable by 25 years' imprisonment. I believe it is always a difficult task trying to plot where on the spectrum of offence seriousness an offence may sit. Categorisations are just that. Differing judges might apply different descriptors or have different views as to where a crime might fall on the spectrum. or differing views as to what a mid-level or high-level or low-level offence might look like. It is usually far more profitable just to look at the actual conduct itself rather than trying to place it into some arbitrary category.
85Well, this was a confrontational aggravated burglary committed in company with two male co-accused upon the bedroom of a joint resident of the boarding house. Confrontational aggravated burglaries are serious crimes. Though not sophisticated, this crime involved some forethought and some discussion with your offsiders. You encouraged the two men to take steps to recover the money and drugs. The locked door was kicked in by Slattery, and you and Kerr then entered. Slattery stood guard. So there was forced entry into a residential setting. Forced entry into the room of someone who plainly was concerned about what had transpired the day before. Entry with intent to assault. It was early in the morning.
86This was a serious crime. It certainly does not fall at the lowest or low end of objective seriousness. Nor did your counsel suggest that it did. In my view, it falls around the mid-level.
87Not every aggravated burglary leads on to other crimes. This one did. You entered as a trespasser intending to assault and then you did just that. The recklessly causing injury is no minor example of that crime. It was a joint attack. It was sustained. You broke from the attack to go elsewhere within the house to obtain the metal bar to then use that to strike the victim. That is really quite incredible. Your victim was terrified. She was reduced to a defenceless state. She was assaulted in her own room and was overwhelmed by the physical attack. She sustained injuries including a fracture to her hand and facial bruising. She was hospitalised for six days.
88The common assault was something of an add on in that it was divorced from the physical violence, in a way. She had continually told you during the physical attack that she did not have the drugs or the money. She had, by the time of the acts and the words the subject of the common assault, been reduced to a totally vulnerable state. She was curled up in a ball trying to protect herself. You signalled the next phase saying ‘Check her cunt. She’s banked it’. Her lower garments were pulled down and you then visually inspected her vagina in the presence of two males, one, Slattery, at the door, the other Kerr, inside the room. Your victim was 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. Of course, in your case I am not dealing with any actual penetration or even skin on skin touching. Your counsel used a different word to describe the common assault. She said it was ugly. It was indeed. It was in my view a serious example of common assault given the conduct and the fear created by the words and conduct.
89These crimes were all serious. They have resulted in serious immediate impact upon your victim. Regrettably, there has been deep ongoing impact as well.
Purposes
90I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I have spoken already of my views on that score. Paradoxically, those prospects are better than they would have been had you not suffered the very poor health outcomes that you have suffered.
91I must 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 importance. This really was outrageous conduct. You should be ashamed of yourself.
92I must pay regard to the need to protect the community from you. Community protection can be moderated here, mainly owing to your reduced physical capacity and the lower risk brought about by your incapacity and lack of mobility. Also of course, that you have remained offence free for three years. It has in my view a far more limited role to play.
93I have to give adequate weight to specific deterrence and general deterrence. Specific deterrence relates to the need to deter you. But for the sad health outcome delivered to you, it would be a quite powerful factor in my task given your age, the gravity of the offending and your past history before the courts. I believe though that specific deterrence can be significantly moderated for the same reasons that community protection can be moderated.
94Each has a far more limited role in this sentencing task.
95General deterrence relates to the need to deter other future offenders and it must be given weight in my task.
96This court must pass sentences which would cause those considering committing crimes such as yours to reflect and to re-consider their position.
97I have to pay regard to the impact of the crimes and also the maximum penalties.
98I have already mentioned that the impact upon Ms Lakeland has been large. We are three years down the track, and she plainly remains deeply affected by your crimes.
99I 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 crimes to which you have pleaded. Statistical material has inherent limitations. I have looked also at the Judicial College of Victoria online assortment of sentencing cases for aggravated burglary, recklessly causing injury and common assault.
100I am sentencing you for your crimes. That is not a statistical or mathematical exercise or one where the outcome in this case, your case, is somehow dictated or controlled 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.
Totality
101Your counsel made submissions as to the need for there to be a level of concurrency as between the sentences. She was not suggesting for one moment that there could be total concurrency, and plainly there cannot be. I accept that the offences arose out of this single episode. However, as I have said, not every aggravated burglary leads on to violent offending. This one did. The recklessly causing injury involved a sustained physical attack within the room and it was quite divorced from the nastiness of the common assault. No doubt each of these three crimes would have had a role to play in the overall impact felt by your victim.
102I take into account the principle of totality of sentence. I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have taken a last look at the effect of my orders for cumulation to ensure that the overall effect is not crushing and is commensurate with your overall criminality.
103A court must never impose a sentence more severe than that which is required to achieve the purposes of sentencing. Prison is plainly a disposition of last resort. Well, it is required here, as was correctly conceded by Ms Burnnard who appeared on your behalf.
104She argued though that the various purposes of sentencing could be achieved by passing a prison term and combining that with a community correction order to take effect upon your release from that prison term. The Crown argued that such an outcome was not open, owing to the serious nature of the offending.
105My provisional view on Friday was that a combination type sentence was not open in this case. I said that I would review all of the material. I have considered all the written materials over the course of the weekend just gone. I have reminded myself of all of the submissions made both on your behalf and on behalf of the prosecution. My view has not altered. If I thought a combination type order was open here, that such a disposition could achieve the various purposes of sentencing, then I would proceed in such a fashion. I do not believe it is open to me here. I do not accept the secondary submission from the Crown as to the inability they say that you would have to attend appointments and the like under such an order.
106However, here there is virtually no pre-sentence detention. The prison component of a combination type order would be limited to a few days over
12 months. I do not believe a combination type order is open to me in the sound exercise of my discretion. It would not pay adequate weight to the seriousness of the crimes that you have committed and the impact caused by them. It would not give adequate weight to the various purposes of sentencing.107Though I believe it should be well open to me to pass an aggregate sentence in a case such as this, I acknowledge that the Court of Appeal takes a different view in relation to the ‘constraints’ that are to be read into s9 of the Sentencing Act.[12]
[12]Adrian Hassall v The King [2024] VSCA 163
108So what I will do is I will pass individual sentences. I will mark out one as the base sentence and then pronounce levels of cumulation upon that base sentence and reach in this manner a head sentence. I will then fix a non-parole period.
109The sentence that I will shortly impose should not be cited by other barristers to other judges in other cases as the types of sentences commonly to be imposed for a confrontational aggravated burglary as serious as yours. There is a significantly increased prison burden in this case. I am going to select sentences and fix a non-parole period which pays regard to the serious matters in mitigation in your case.
110I can make no assumptions as to your getting parole. That will be for the Adult Parole Board to determine. In fact I am prohibited from considering the possibility of your early release. I must work on the assumption you will serve every day of the head sentence that I will soon pronounce. Given the duration of that head sentence though, I am required as a matter of law to fix a non-parole period. Given the matters placed before me, including the matters going to a significantly increased prison burden, I will make provision for the possibility of a very decent period on parole. As I have said though, whether you are granted parole, is not something I can speculate about. It will be between you and the Adult Parole Board.
111Let me now pass sentence then.
Sentence
112On the charge of aggravated burglary, Charge 1 on the indictment, I convict and sentence you to two years and eight months' imprisonment.
113On Charge 2, recklessly causing injury, I convict and sentence you to
21 months' imprisonment.114On Charge 3, common assault, I convict and sentence you to 15 months' imprisonment.
115The base sentence is therefore the two years eight months imposed on
Charge 1.Cumulation
116I direct 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
117These orders for cumulation produce a total effective sentence of 42 months or three and a half years' imprisonment.
Non-Parole Period
118I fix a period of 17 months during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
119You have served already three days of this 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.
6AAA
120I 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 five and a half years' imprisonment. I would have fixed a non-parole period of three years. Let me just see if there is anything else I need to deal with. Anything else from your perspective, Mr Gray?
121 MR GRAY: No, Your Honour.
122 HIS HONOUR: Ms Burnnard?
123 MS BURNNARD: No, Your Honour.
124 HIS HONOUR: All right. I have already made those orders previously in terms of custody management. It is not my intention to repeat them unless you feel there is some need for me to deal with them in these current orders.
125 MS BURNNARD: I'd ask Your Honour to repeat what was said on Friday only because there has been an issue with Ms Leggett not having received all her medication.
126 HIS HONOUR: Yes, all right. I will repeat the form of the order that was endorsed on the formal record on Friday in terms of the various medical issues and the need for medication and risk of self-harm and the like. So, in the same terms, I will spell those out then. Anything else then from you?
127 MS BURNNARD: Perhaps Your Honour could also add that she requires her mirtazapine and her antibiotics specifically.
128 HIS HONOUR: Just spell it out.
129
MS BURNNARD: I'll just find the reference, Your Honour, I apologise.
M-i-r-t-a-z-a-p-i-n-e. Mirtazapine, I think I pronounced it incorrectly.
130 HIS HONOUR: So she requires - - -
131 MS BURNNARD: It's an antidepressant.
132 HIS HONOUR: And what was the other one?
133 MS BURNNARD: Her antibiotics. They're of course to manage the infection.
134 HIS HONOUR: All right. Well look I will add in the endorsement – what did I say? Have you got the copy of what I said the other day in case - - -
135 MS BURNNARD: The antibiotic, Your Honour, is called Bactrim.
136 HIS HONOUR: I am not going to spell it out. Look I will spell out she requires mirtazapine and her antibiotics, but she needs to be seen by a doctor obviously and I am specifying that.
137 MS BURNNARD: May it please the court.
138 HIS HONOUR: Let me just look at the former of orders. Nothing else from either of you?
139 MR GRAY: No, Your Honour.
140 MS BURNNARD: No, Your Honour.
141 ASSOCIATE: We have the link until two, so if she wants to speak to - - -
142 HIS HONOUR: Well, we've got the link – we could leave the link in place and if she wants to employ it to speak to you, then she's free to - - -
143 ASSOCIATE: (Indistinct words)
144 HIS HONOUR: Is Ms Leggett wanting to remain to speak to her barrister or not?
145 PRISON OFFICER: Ms Leggett has just left the room.
146 HIS HONOUR: Okay, well that is her choice. Thanks very much then.
147 PRISON OFFICER: Thank you.
148HIS HONOUR: Well you will be in touch with her obviously in one shape or form, whether it is arranging some sort of audiovisual link or Webex or whatever it is, you will speak to her and give her advice about the outcome and her rights in relation to it, Ms Burnnard.
149 MS BURNNARD: I'll do that.
150 HIS HONOUR: Yes, all right. Well I have signed that form of order then. Yes, thank you. Once I have revised these remarks, when I get them back, I will make them available to the parties. I do it pretty swiftly, but it might take a few days to get them back. Okay. Grab a seat, Ms Burnnard. 10.30 tomorrow then please.
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