Director of Public Prosecutions v Lim

[2018] VCC 1474

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00792

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY LIM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	11 September 2018
CASE MAY BE CITED AS:	DPP v Lim
MEDIUM NEUTRAL CITATION:	[2018] VCC 1474

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French (Plea) Mr M. Vella (Sentence)	Office of Public Prosecutions
For the Accused	Ms N. Smith	Victoria Legal Aid

HIS HONOUR: 

1Anthony Lim, approximately five years ago you commenced a relationship with the victim.  You were living with her.  However in May of 2017, you were violent towards her and she called the police.  An intervention order was taken out, naming the victim and her daughter as the protected persons.  The final order was made on 9 May 2017 which included conditions that you were not to commit family violence against the protected persons, not to contact or communicate with the protected persons, not to approach or remain within 100 metres of the protected persons and not go or remain within 200 metres of the place where the protected persons lived. 

2As will be made clear later, this was not the first time that the victim had taken out an intervention order against you nor the first time that you have breached the intervention order by committing violence or contact.  And so it was that notwithstanding the strict orders of the intervention order, you routinely contacted or attempted to contact the protected persons via Facebook and text messages.  This occurred from 25 May 2017 almost every day thereafter to 30 June 2017. 

3On around 30 June 2017, you were using methylamphetamines and later you said alcohol.  You say that you learned from an associate that the victim had taken up with another man.  It seemed to infuriate you and you went around to where she was living at approximately 5 am in the morning.  The victim was in fact awake and near her backdoor.  She heard tapping on the backdoor which was you, and then the sound of kicking on the door.  She ran to the lounge room and yelled out for her father who was there at the premises asleep.  Her father, the second victim, went to the back of the house and endeavoured to stop you coming through the laundry door.  You used considerable force on the door which caused it to fall inwards and the father fell to the ground. 

4Once you got into the house and once the father had fallen down, you commenced to assault him in a violent manner.  You took him in a headlock and screamed at him, "I'm going to kill you.  What's it like knowing that you will never see your daughter or granddaughter again?"  You continued to punch and hold the second victim in a headlock until he was unconscious.  In the end, he sustained a black eye, cuts to his forehead as well as pain in his ribs and knee.  I will return to the gravity of this offence shortly.

5The victim, that being your previous partner, had run to the front of the house to try and get help.  Her six-year-old daughter had woken and run outside with her mother, crying and holding on to her mother.  You headed outside, screaming insults at the victim.  The noise and disturbance caused a 77-year-old neighbour bravely to come out to the front of her house to try and comfort the victim and the child.  While you were out the front, you came outside and said to the victim, "Your dad's dead, you're next."

6Then in a gratuitous act of violence, you went up to the 77-year-old neighbour with your right fist clenched, raising your arm and telling her to go away.  She was extremely fearful.  You continued to yell at her to get away from your ex-partner.  You then grabbed your ex-partner from behind and held her while her daughter continued to hold on to her mother, screaming.  You gripped the victim around the throat.  The 77-year-old neighbour begged you to stop. 

7At about 5.18, the police who had been called by other neighbours arrived and witnessed you holding your ex-partner in a headlock.  You were yelling, "I'm going to fucking kill her, get back, I'll fucking kill her."  The police who were there radioed for further assistance and endeavoured to help the victim by getting you to let go of your chokehold.  The victim was struggling to breathe and she felt that she was going to pass out.  You started walking backwards towards the house, dragging the victim with you.  A police officer deployed OC spray but it had no immediate effect.  He then hit you with his police-issued torch and was able to place you in a headlock and bring you to the ground.  You eventually then released the victim who ran.

8After your arrest, you were taken to the Ballarat Hospital where it was revealed that you had a blood alcohol concentration of 0.06.  Later in the morning, you were interviewed by the police where you minimised your offending.  You were remanded in custody and have remained in custody to this point.  I am told that is 437 days.

9You have pleaded guilty to one charge of aggravated burglary where the intent was to assault a person therein; one charge of persistent contravention of a family violence intervention order; two charges of causing injury intentionally, one to your ex-partner and one to her father; and two charges of making a threat to kill, one made to your ex-partner's father that you would kill him and one made to your ex-partner that you would kill her.

10This offending is very grave indeed.  What makes it serious is that you used considerable force to get inside the premises.  It was in the very early hours of the morning when those inside were in the main asleep.  The offence was committed in front of a child and you were well aware that the child would be present.  Your attack upon the victim's father was sustained and dangerous.  Likewise your attack by choking the victim was also sustained and persistent despite the police using significant force and OC spray to get you to stop holding her in the headlock and dragging her back towards the house.  This violence was also in front of and directed towards an elderly female neighbour who had simply come to the assistance of the victim and her child.

11All of this of course was done in breach of a recently obtained intervention order to prevent you from being in the vicinity and committing violence upon the victim.  I am also told you were on a community corrections order at the time as well.  Of course, you had to that point breached the intervention order routinely by communicating with the victim when you should not have done so.

12The features that I have outlined are identified by the Court of Appeal in DPP v Meyers as those things to consider when assessing the gravity of an aggravated burglary against a previous partner.  I note that you were not armed and you were alone.

13As I have been required to say too often in circumstances such as these when passing sentences, men like you have to understand that women are entitled to leave relationships and form new ones.  They are entitled to do so safely and without cowardly men like you attacking them in their own homes.  The community is heartily sick of violent men like you committing significant violence against women in the sort of circumstances that occurred here.  The fact that you were under the influence of drugs and alcohol is no matter of mitigation, excuse or indeed explanation.  It serves to make your offending more serious as you were not in any state to listen to reason but rather seemed emboldened to continue with your violence notwithstanding the efforts of the victim's father, an elderly neighbour and then the police. 

14In my view, this is a very grave example of the crime of aggravated burglary, intentionally cause injury and threats to kill.  The sentencing purposes of denunciation, protection of the community from you and deterrence to others and to you loom large.  These sentencing purposes are not just to the fore as a consequence of this offending.  What is relevant to in particular the sentencing purposes of the need of deterrence to you and the protection of the community from you and your prospects of rehabilitation is both the instant offending but also your recent past similar criminal behaviour. 

15Before embarking on an analysis of those prior convictions, I need to stress from the outset that you are not to be re-punished for past crimes.  Rather, those matters are relevant to my assessment of the gravity of your crimes, your moral culpability and the sentencing purposes that I have just mentioned.

16What is particularly concerning is that your violent crimes on 1 July 2017 were the third time you had been brought before the courts for violence upon this victim.  As noted in the prosecution opening for 1 July 2017 crimes, you were the subject of an intervention order because of violence towards the victim.  That is not one of the instances of a prior criminal matter.  There are others which I will turn to shortly.  Before doing so, there was an earlier episode of violence on an ex-girlfriend and her housemate that has disturbing similarities to the current circumstances.

17What occurred on 24 October 2013 is that you attended at the premises of an ex-girlfriend.  She was with her young housemate.  You yelled at her that you wanted to speak to her but she went inside.  You became abusive, in particular when she closed the door.  You then damaged the front security door and smashed a glass panel in the front door, reached in, unlocked the door and entered the premises.  You then took hold of the ex-girlfriend by her jumper and while that was occurring, she yelled for her housemate to call the police.  You then threw your ex-girlfriend on the couch and turned to the housemate, grabbing her from behind, wrapping her up so she could not move and screamed at her, "Do you wanna call the cops now, huh?"  She dropped to the floor.  Her friend, that is your ex-girlfriend, came to her assistance.  You then punched her to the face a number of times, causing her to fall to her knees.  She believed that you then kicked or kneed her in the chest.  You then left the premises with property that you claim was yours.

18Other offending involved this victim and indeed her father.  An intervention order was taken out on 17 June 2014 against you.  You were not to communicate with or be within 5 metres of the protected person.  It seems that on 4 July 2014, you went to her address where you were not meant to go.  Once there, you had a conversation with her saying that you were going to count down, saying you were going to smash the window to unlock the door prior to the victim's father arriving at the address.  This was in breach of the intervention order and frightening behaviour.

19Some days later on 29 July 2014, the victim - that is, the victim in these matters before me - was travelling towards Geelong on a bus.  You happened to be on the bus as well.  You sat near her and attempted to engage her in communication, making threats or intimidating her.  She got off the bus.  That was not enough for you.  You then attended at her address in a suburb in Geelong.  You approached the front door and knocked and asked to come inside to collect your property.  She ran to the bathroom fearing that you would assault her, and remained on the windowsill ready to escape if you came inside.  You threw a computer tower into the front yard from the front lounge and then climbed through the window frame and confronted the victim's father, the same man you injured and dealt with and threatened on this occasion.

20You then said you were only there to collect property.  The father then left you and a mobile phone was used to call for immediate assistance.  You became enraged, believing that the police had been called and you yelled out, "Tell your daughter if she is ringing the cops, I'm going to kill her." 

21There was other breaches of intervention orders with a previous partner that were done via Facebook. 

22It is unfortunately clear that you have a propensity to commit violence against women who are or were in a relationship with you, often in breach of an intervention order granted by a court to protect the woman.  You have had the benefit of suspended gaol terms directed in part at deterring you and rehabilitating you but these sentences that have been imposed have not had any deterrent effect on you, neither have the terms of imprisonment that were ultimately imposed when you breached the intervention orders. 

23I do not propose to go through each and every one of the sentences and crimes that are summarised in the narrative that I have just outlined.  There was on 5 August 2014 importantly a conviction for threats to kill and I will return to the consequences of that at a later point.

24Your prior offending reveals a violent and unrestrained aspect of your character.  The offending before me is an escalation in violence and the level of threat.  Also, the aggravated burglary aspect is likewise an escalation but you have in the past shown little regard for your victims' entitlement to feel safe and secure in their own home.  As the courts and indeed the community understand in respect to domestic violence, there is often an escalation from lesser criminal conduct that leads up to serious violence being displayed.  You displayed early signs of those aspects of becoming a serial perpetrator of domestic violence.  These sorts of offences are a scourge.  Corrosive fear is engendered in the victims and, as is the case here, the wider family and others such as neighbours who witness or are caught up in the violence.  Yours is a selfish and cowardly approach to relationships.  It seems to me you seek to dominate and control and turn to violence if rejected.

25As was said by the Court of Appeal in Pasinis v The Queen, "Historically perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence."  It recognises that often women have been subject to - and I paraphrase - assaults many times previously before the offences that are before the court.  What the Court went on to say in Pasinis was it makes "both specific and general deterrence very important factors in sentencing men who assault their partners."

26The community has expressed abhorrence to such crimes and attitudes.  The time of softer approaches to domestic violence is well gone, as outlined by the Court of Appeal in Pasinis.  I cannot ignore such sentiments.  My sentence here today must be a stern one. 

27As the High Court in Dalgliesh and Kilic have made clear, other sentences and current sentencing practices are but one factor.  Individualised sentencing is the authorised approach.  Thus the just and appropriate sentence for crimes of this kind committed by a man with your criminal history must be severe involving years of incarceration.

28As to your personal circumstances, you are now 39.  You were born in Malaysia, migrating to Australia at the age of two.  Your father returned to Malaysia within a short period of time and your mother re-partnered.  This new partner or your stepfather was violent to you.  You were raised and went to school in Geelong.  After school, you spent about six months in the army before a variety of jobs in hospitality and retail.  You were particularly close to your grandmother who died sadly when you were just a teenager.

29You married in your mid-20s and had three children.  The eldest was autistic and to your credit, you retrained in the disability field and gained work in that area for three years.  It is not easy work.  You separated from your previous wife in 2011 and it seems have had little to do with your ex-wife or your children.  However you have indicated recently in particular to Ms Warren, the medicolegal psychologist that saw you for this plea, that you wanted to develop a relationship with your children into the future.

30You commenced a relationship with the victim in this matter in around 2012 or thereabouts.  Your drug use escalated.  You took to using ice.  Your previous good work history fell away. 

31Although you are not yet 40, you have had a number of health problems which are relevant.  You suffered an apparent heart attack at the age of 31.  I am told you are no longer medicated or not medicated for that. 

32In custody since this offending, you have suffering from significant nasal passage problems.  This has had other implications in respect of your health.  Scans reveal that there was a mass on your brain and surgery occurred to remove what was discovered to be a mucus mass.  It seems that it was connected with your nasal passage problems.  You await further scans and assessment by the specialist as to whether the problem has resolved or whether you are at risk of it redeveloping.

33You have been an inpatient at St Vincent's for surgery and investigations.  The key relevant point here is understandably you have been anxious about your health.  You thought, as you were told, that you had a brain tumour and for some months you were highly stressed.  As it turns out, it appears that there is not a brain tumour as such but nonetheless it is the stress upon you and the risks are that things may develop in the same domain as they have before.  Also and of importance, your hearing has deteriorated and you have only recently received hearing aids to assist you.

34You have had surgery as I have indicated but what has occurred post-surgery is that you have difficulty sleeping without snoring.  This causes problems for other prisoners and you are at risk of being assaulted by them because of it.  You have been kept in 23-hour lockdown for a number of weeks as a consequence. 

35The treatment plans for you are uncertain.  As you are in custody, you are not advised as to when treatment or investigation appointments occur.  There was a delay in various aspects of your investigation and treatment and the provision of hearing aids.  All of this added to your stress.  The medication that has been prescribed to you post-surgery has not been thoroughly administrated and it seems that you need a regular routine of medication and other treatments for your nasal passage that are not always provided to you.  I take all this into account in the sense that prison has been and will be onerous for you because of these health problems.

36The psychologist Ms Warren made this point about your anxiety in her report.  The other observation she made was the obvious one:  that you were a drug addict.  Your life was compromised in many aspects because of your addiction to ice.  However, your previous convictions for violence and threats subsequent to you taking up the use of ice were also within a context of abuse of drugs.  Thus you know of your risk of violence towards your ex-partner while you continued to use drugs especially in combination with alcohol.

37You told Ms Warren that you regard the immediate physical symptoms of ice use is that it induces calm, but importantly you told her that aggression arises as the effects wear off and you begin to experience withdrawal effects.  You claim, and I accept, that you were under the influence of drugs at the time of this home invasion and that you were sleep deprived, a condition that is well understood to flow from the use of ice.  You also said that you had drunk an excessive amount of alcohol; as to precisely how much that was, what is certain is that you had alcohol in your system when tested in the hospital at 0.06.  But this is all in circumstances where I take it that you knew or should have known that it would lead to poor judgement and likely violence.  Thus the use of drugs and alcohol on the evening and prior to your attack on the victims is not a matter in mitigation but to the contrary.

38You have now expressed remorse in your unsworn letter tendered on your plea and in your conversation with Ms Warren, the psychologist.  I accept you are contrite and the thought of having a brain tumour has woken you up to your problems.  You indicated your plea of guilty in April 2018 after a committal was organised by other lawyers.  Your plea of guilty will be acknowledged in that the sentence that I have fixed is less than it would have otherwise had been had you pleaded not guilty and been found not guilty.  Yours is an early plea but not at the earliest opportunity.  Your plea of guilty is an acknowledgement of your responsibility and an expression by you of your remorse.

39While on remand notwithstanding your anxiety and your health problems, you have done all that you can which has included courses to extend your skills.  On release as I said, you seek to re-establish some relationship with your children.  You recognise your relationship with your ex-partner, the victim, is over.  As noted, the important sentencing purposes are denunciation of your dreadful violent crimes and deterrence to you and to others.  However, given your prior conviction for threats to kill and your repeat of that crime on two occasions in this episode, you fall to be sentenced as a serious offender.  That is if I determine that your sentence for the threats to kill must be a gaol term, then you become a serious offender. 

40I am certainly of the view that the threats to kill in this case to the victim and to her father warrant a sentence of imprisonment.  They were no idle words but calculated and chilling threats to kill while you were in the midst of your violent attacks.  Thus for those crimes, because of the serious offender provisions, protection of the community must be the primary sentencing purpose.  I should state that without the statutory mandate, protection of the community from you is a matter of real importance.  You must be imprisoned and thus incapacitated and thereby the community is protected.  It is hoped that you do learn a lesson and on your release reform so the community remains safer from your violence.  As I said, you say that your brain tumour scare has caused you to wake up to yourself.  It was said that given your many years of good work history and your lack of prior convictions until taking up ice into your thirties, your prospects for reform were reasonable.

41I accept that there is a basis for that but I am a little more guarded.  Whether you reform is up to you to take up assistance that can be provided to you and most importantly, cease taking drugs.  I will do what I can to establish conditions to facilitate your rehabilitation by allowing for a potential parole period.  Whether you are granted parole or not is a matter for others, not me.

42As was made clear by the Court of Appeal in Hogarth v The Queen and DPP v Meyers, the range of sentences imposed in the past for aggravated burglary were less than what ought to be expected.  That said, depending on the circumstances of the offending, merciful and flexible sentences are appropriate in certain cases, for example Bradshaw.  However, sentences of years of imprisonment are also seen as appropriate in serious cases when the accused has relevant prior convictions for example Bux v The Queen, Hi v The Queen and Meyers itself. 

43By operation of the Sentencing Act, the maximum term in this case for aggravated burglary, the long maximum of 25 years must be factored into the equation as must the maximum terms for each offence.  I do not, to use the analogy of Justice Callaway, sail towards the maximum but I am guided by the light of the maximum term.  The array of decisions by the Court of Appeal in cases on aggravated burglary indicate that the light of the maximum term was too dimly appreciated. 

44Although aggravated burglary is an enabling offence and often the intents and the conduct thereafter is the more serious aspect of the criminal conduct, nonetheless breaking the safety and sanctity of someone's home is grave offending causing real fear in a victim and the community, especially in the context of the violence within this relationship.  In this case the attack and injury caused to the father was, as I have said, concerning and dangerous.  All he was doing was bravely trying to hold you off and protect his daughter as he has done in the past.  The injury to your ex-girlfriend was also troubling and committed in front of her daughter as she tried to escape even when the police came to her assistance.

45It is difficult and perhaps not necessary to differentiate between the two threats to kill.  Each was cruel and chilling.  Each of the crimes needs to be acknowledged by a degree of cumulation and in the case of the threats to kill, that cumulation must recognise the serious offender provisions.  In taking that into account in respect of the cumulation, I do not ignore the principle of totality.  It still has application otherwise the sentence that I would impose would become just an outlier of a sentence.  So I have factored in and otherwise ordered that there will be come level of concurrency with the threat to kill.

46Doing the best I can in this case, for committing the crime of aggravated burglary, you are sentenced to six years and six months' imprisonment.

47For committing the crime of intentionally causing injury to the father, the victim, you are sentenced to two years' imprisonment.

48For committing the crime of intentionally causing injury to the other victim, the ex-partner, you are sentenced to 20 months imprisonment.

49For committing the crime of threat to kill to the father, you are sentenced to 20 months' imprisonment.

50For committing the crime of threat to kill to the ex-girlfriend, you are sentenced to 20 months' imprisonment.

51For committing the crime of persistently breaching the family violence intervention order, you are sentenced to six months' imprisonment.

52For the summary offence of use a drug of dependence, you are convicted and discharged, 

53For the summary crime of unlawful assault, you are sentenced to four months' imprisonment.

54The aggravated burglary Charge 1 is the base sentence.  The orders for cumulation are as follows:  ten months of Charge 2, six months of Charge 3, ten months of Charge 4, and ten months of Charge 5, and one month of the unlawful assault, the summary offence, are cumulative upon each other and upon the base sentence.  If my calculations are correct, that is a total effective sentence of nine years and seven months and I order that you serve a minimum term of seven years before being eligible for parole.

55As indicated, you have served 437 days on remand.  That figure having been reckoned, I declare that the 437 days is part of the sentence I have just imposed.  I will ensure that that declaration is entered into the records of the court so the corrections authorities or the prison authorities are left in no doubt that you have already completed 437 days of the sentence I have just imposed.

56In respect of Charges 4 and 5, I declare that you are a serious offender.  I will ensure that that declaration is entered into the records of the court. 

57Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 12 years with a minimum term of nine.

58Is there any other orders?

59MR VELLA:  No, Your Honour.

60HIS HONOUR:  The mathematics is correct?

61MR VELLA:  I believe so, Your Honour.

62MS SMITH:  I also believe so.

63HIS HONOUR:  Can we get from belief to absolute certainty?

64MR VELLA:  Yes, just one moment, Your Honour.

65HIS HONOUR:  Yes.  My staff say it's correct.

66MR VELLA:  Yes, I have some certainty, Your Honour.

67MS SMITH:  I also agree.

68HIS HONOUR:  Thank you, I'm very grateful to the practitioners involved in this matter.  Mr Lim can be removed.

69OFFENDER:  Thank you, Your Honour.

70HIS HONOUR:  Thank you.  We'll stand down while the other cases are brought up.

71MR VELLA:  As Your Honour please.

72MS SMITH:  Your Honour pleases.

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