Director of Public Prosecutions v Long

[2021] VCC 704

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00032

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOANNE LONG

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2021
DATE OF SENTENCE:	27 May 2021
CASE MAY BE CITED AS:	DPP v Long
MEDIUM NEUTRAL CITATION:	[2021] VCC 704

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Plea – Aggravated burglary – Common assault - Psychological – Mitigating factors – Verdins – Boulton - Premeditation – Offending out of character – Remorse – Burden of imprisonment – No prior convictions – DSP – Low range of seriousness – CCO inherently punitive – Carer – Familial responsibility – Intellectual impairment – Bullying – Parsimony – Age – Circumstances of offending – Community work – Interests of justice

Legislation Cited: Sentencing Act 1991 (Vic) - Crimes Act 1958

Cases Cited: Neal v The Queen (1982) 149 CLR 305 - Boulton v The Queen [2014] VSCA 342 - R v Verdins & Ors [2007] VSCA 102.

Sentence: Early plea – Good prospects of rehabilitation – Community Corrections Order – Community work – Supervision– Offender programs - No prior convictions – Age – Low range - Sentencing Act 1991 (Vic) - Crimes Act 1958, s77 - R v Verdins & Ors [2007] VSCA 102 - Boulton v The Queen [2014] VSCA 342 - Neal v The Queen (1982) 149 CLR 305 – Total Effective Sentence: 30 month Community Corrections Order, aggregate sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Rutherford	Ms C. Dunn, Solicitor for Public Prosecutions
For the Accused	Mr R. Lawrence	Victoria Legal Aid

HIS HONOUR:

1Joanne Long, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault. The maximum penalties are 25 years and
5 years imprisonment respectively.[1][2]

[1] Contrary to s 77 of the Crimes Act 1958.

2The circumstances of the offending were outlined in the prosecution opening which was read in open court this morning and which I incorporate by reference.[3]

3In brief outline, you are the mother of a 23-year-old son who is intellectually disabled. You have a daughter aged 19, and a 15-year-old son who is also intellectually disabled.

4The oldest son, Liam, is on a disability support pension. He was acquainted in this matter with the complainant, Ms Le Guier, and also with another two parties that were involved, Mr Parker-Duffin and Mr Watts. The three of them are young people aged respectively 23, 19 and 20. Mr Parker-Duffin and Mr Watts lived with the complainant, Ms Le Guier, at an address in Bartlett Court, Corio. You lived very nearby also, and your son lived separately, also nearby.

5Your son was involved in an altercation with one of the occupants of the Bartlett Court property, Mr Parker-Duffin. Mr Watts became aware of the altercation, as did Ms Le Guier. Your son returned to his home bleeding after suffering a cut to his eye and lip in this altercation with Mr Parker-Duffin. You were upset at this and then proceeded to attend at the address in Bartlett Court in the late afternoon of 23 March 2020. You were accompanied by a Mr Rosenow, who is not a co-offender. 

6Upon your arrival you proceeded to yell out, 'Open the fucking door’ and ‘come out or I'll break the door down'. Mr Rosenow also called out to the occupants saying, ‘open the door now, or I’ll smash a window and climb in, and if I have to do that, I’ll bash you’. You asked through the screen door why your son was attacked and told the occupants to, 'Come out or I’m going to fucking kill ya’s'. During this time, you were trying to forcibly open the screen door.

7Ms Le Guier told you to 'Just fuck off, I'm calling the cops, just fuck off'. You pulled the locked screen door open, entered the house and grabbed Ms Le Guier by the throat with one hand and the front of her hair with the other hand. You pushed Ms Le Guier and she fell into the wall near the door. You approached Ms Le Guier and punched her in the head with a closed fist approximately three times. She hit you in the face and attempted to pull you off her. You grabbed at her again and punched her in the ribs and stomach.  During the offending, Mr Parker-Duffin was attempting to pull you off Ms Le Guier.  

8You ceased hitting Ms Le Guier. She screamed at you ‘fuck off, just go, get out’ and you then proceeded to leave. She slammed the screen door behind you and you then kicked and punched at the door. Mr Rosenow said, 'Don’t be a lagger, don’t be a lagger’. Subsequently, Mr Watts called the police. These events constitute the offence of aggravated burglary and common law assault on Ms Le Guier.

9You were arrested and in your record of interview made full admissions, including explaining that you had been told by your son that he had been beaten up and was crying and as a result of that you went wild and went around to the house. When the occupants would not come outside you kicked the door and banged on the window and grabbed the handle of the door, and it came open and you then beat up Ms Le Guier. You were after Mr Parker-Duffin but ended up going for Ms Le Guier. You were scared that he would hit you back. The more she yelled at you to get out of the house the more you hit her. You said you were sick of everyone hitting your son and he cannot fight for himself. You also stated that you should not have done it. You explained that you went to the house because you were wild. You explained that you just lost it. As I indicated, these events constitute the offence of aggravated burglary and common law assault.

10In Ms Le Guier’s victim impact statement,[4] she reported that she felt scared and worried and ended up having a panic attack and urinating in her pants. Police who attended observed that she had red marks and swelling on her head and ribs. Ms Le Guier also indicated in her victim impact statement that she had lost a lot of enjoyment of life as a result of the event. She feels physically scared, depressed, anxious, stressed and even angry that she could not protect herself in her own house. For months she cried.

11Seriousness of the offences

[3] Exhibit A on the plea.

[4] Exhibit B on the plea.

12This was serious offending. In a highly agitated state you attended the house, and when the occupants would not come outside, you then effectively forced your way in. Although there was no co-offender involved, there was another person there at the time. Further, Ms Le Guier, who you attacked, was not even the person you believed had assaulted your son. I am satisfied that the offending here however lacked a number of aggravating features often seen in cases of aggravated burglary. You were known to the occupants of the house. The offence occurred in the late afternoon. You were not armed with any weapons, and you did not enter the property in company.

13It was submitted by your counsel that this was impulsive and spontaneous offending in an emotionally charged environment without any planning.

14There was some premeditation for a possible assault on the occupants of the house, in that you went around there from your own property, which appears to be about a two-minute drive. On the other hand, when you arrived you sought for the occupants to come out in order to confront them over the alleged assault on your son. When they did not open the door, that is when you forced your way in. The offence of aggravated burglary is committed upon entry into the property with the relevant intention to assault. Given the statements made at the time when you were outside, I am prepared to find that there was little premeditation for the actual entry into the property. This is consistent with the fact that you committed an assault on Ms Le Guier when you got inside, rather than on Mr Parker-Duffin. Overall, I would put this offending as being in the lower range of seriousness for the serious offence of aggravated burglary. In relation to the injuries to Ms Le Guier, they too are on the lower end of the scale. The offending here did however have a significant psychological impact on her.

Matters in Mitigation

15I turn now to matters in mitigation. Your personal circumstances and background are set out in the plea submission by your counsel, which I incorporate by reference.[5]

[5] Exhibit 1 on the plea.

16You have three children, aged 23, namely Liam; a daughter aged 19; and a son aged 15. As I have indicated, Liam and Jordan both have some form of intellectual disability and Liam is on a Disability Support Pension (DSP).

17Further, you are in a long-term relationship with a Mr Rodgers, the father of the two younger children. You have significant health problems and Mr Rodgers is your carer for the purposes of your DSP.

18You have had significant issues with obesity and for the last eight years have been on the DSP. You have very little employment history. You struggled at school and as indicated by Mr Cummins in his Psychological Report,[6] you are effectively illiterate. You have had long-term issues with depression and are on an anti-depressant. Mr Cummins found that you are suffering from a major depressive disorder of moderate severity and associated with anxious distress.  In evidence was some medical material that indicated you were on medication for depression as long ago as 2010, and that you had been referred in a mental health plan to a psychologist in 2014 to address your anger outbursts. You had some counselling at that point.[7]

[6] Exhibit 2 on the plea.

[7] Exhibit 3 on the plea.

19In a comprehensive plea submission, your counsel put as a significant matter in mitigation your age and lack of prior convictions. You are effectively a first offender. For a woman aged 52, facing these serious offences, this is very significant.

20Next, you have pleaded guilty. The prosecution accepted that this was an early plea of guilty. This has significant utilitarian value. You have facilitated the course of justice. The matter was resolved after a paper committal. It has obviated the need for a trial and in the COVID state that we have been in up until recently, and now, the plea has significant utilitarian value and you get full credit for that.

21Further, I am satisfied that your plea is evidence of your remorse. As I have indicated, you made full admissions in the record of interview. You did not seek to downplay your offending and Mr Cummins confirms that you are remorseful. I accept that you have insight into your offending, and I accept also his opinion that your risk of reoffending is relatively low.

22Next, the explanation for the offending has some cogency. It is not in dispute that your son, Liam, was injured in an altercation with Mr Parker-Duffin. You had observed his injuries and it is not surprising that a mother in those circumstances would be very upset. It was in that emotional state that you attended at the property. An additional matter going to your explanation for the offending, is your statement that your son, Liam, had been the subject of bullying. Given that he had some form of intellectual disability, this is not a matter of surprise. It is further not a matter of surprise that a mother in those circumstances would become upset. 

23An additional matter identified by Mr Cummins in his report, is that you had been the subject of bullying in your youth, due to your own obesity. He indicates in his report at paragraph 41 that he diagnosed you as having a chronic adjustment disorder with mixed disturbance of emotions and conduct. He said that this adjustment disorder has come from your early teenage years, if not earlier, and is associated with your increased awareness of being teased and bullied for being obese, he still classes you as clinically obese. He says:

'You would still be assessed as being clinically obese as you currently weigh 170 kilograms.  In my opinion, there has been a nexus between her being obese and being bullied as a child and teenager, and being bullied on occasions later in life and her feelings of protection towards her son, Liam, who is now aged 23 and still being teased and bullied because of his intellectual disability and his physical appearance'.[8]

[8] Exhibit 2 on the plea at [41].

24So, Mr Cummins provides an opinion as to a nexus between your own background of being bullied as a result of your obesity, and your response to the events involving Liam, and your own knowledge that he had been bullied in the past.

25So, your counsel submitted that your prior experience of bullying went to explain your overreaction and combined with your depression, was such that there should be some reduction in your moral culpability.

26The learned prosecutor disputed that there should be a reduction in your moral culpability and said the opinion of Mr Cummins does not go that far.

27I am of the view that Mr Cummins' opinion does support your emotional response to the events involving your son, Liam. It provides a significant background to the reason why you proceeded to go around to confront the alleged perpetrator of the assault on the son, when you had just seen him with blood coming from the cuts on his eye and lip.

28I am satisfied that the emotional distress was genuine here. It does provide some explanation for your conduct, but of course does not provide any justification for it whatsoever. It is however, relevant to your sentencing.

29In a relatively old well-known case in the High Court, Neal v The Queen, Brennan J said:

'Emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence, although its mitigating effect can be outweighed by a countervailing factor.  The sentencing court takes account of emotional stress in evaluating the moral culpability of the offender, just as it is entitled to have regard to the motive for the offence'.[9]

[9]Neal v The Queen (1982) 149 CLR 305, 324.

30So here, you were in an emotional state. The emotion was in a sense to confront Mr Parker-Duffin for what you perceived as his attack on Liam, and the continuation of bullying that Liam had been subject to.

31So, consistent with what was said in that case of Neal, I do take into account your emotional state at the time of the offending in sentencing you.

32Next, the report of Mr Cummins is relied on by your defence counsel, on the basis of the Verdins considerations of Verdins limbs 4, 5 and 6, that your emotional health would deteriorate should you be incarcerated, and I do take that into account.[10] This applies particularly because of your concern for your two intellectually impaired children, Liam and Jordan, and your concern as to whether Mr Rodgers, your partner who has his own medical challenges, will be in a position to properly care for your son, Jordan, and also in a sense to look after Liam while you are in any custody.

[10]R v Verdins & Ors [2007] VSCA 102.

33While these matters do not rise to the level of exceptional circumstances, they must be taken into account in sentencing and the type of sentence to be imposed. It was the submission of your counsel that this case is one which is unusual and exceptional and that the usual sentencing considerations when dealing with this serious offence, which would otherwise call for a term of imprisonment, should not apply. He referred to the principle of parsimony which directs the courts to impose the least onerous sanction which will meet all sentencing considerations. He also referred to the case of Boulton,[11] which indicates that even for a serious offence, a community corrections order can be within range and can address considerations of general deterrence, specific deterrence, denunciation and rehabilitation.

[11]Boulton v The Queen [2014] VSCA 342.

34I have had you assessed for a community corrections order and you were found to be suitable. The real issue on the plea was whether all the sentencing considerations can be addressed by a community corrections order alone, rather than when combined with a term of imprisonment.

35In sentencing you, the basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offences; your culpability for them; your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

36Having carefully considered the competing submissions I have determined that all sentencing considerations can be addressed by the imposition of a community corrections order. Your conduct must be totally denounced. It is totally unacceptable for you to seek to take the law into your own hands after you saw that your son had been involved in some altercation, that obviously he came off second best in. Your conduct in bursting into the house and assaulting the innocent complainant, Ms Le Guier, adds to the seriousness and stupidity of your conduct. A signal must be sent to people who are involved in disputes with others, that it is just not acceptable for them to burst into other people's houses and seek to meet out some form of justice.

37Weighed against this is your particular background at age 52, with no prior offending of this nature, your age, your physical condition, and the motherly instinct to protect your own intellectually impaired son in circumstances where you too had been the subject of bullying in your younger youth, makes your explanation for the offending cogent. This makes considerations of specific deterrence less important and means that your prospect of rehabilitation are very good. Your early plea of guilty is also important as an expression of your remorse.

38I have reached the conclusion that the community interest would not be served by imposing a sentence of imprisonment on you. I have considered all the considerations of sentencing in the Sentencing Act[12] and noted that in the Sentencing Snapshot, around 10 to 15  per cent of sentences for aggravated burglary up until 2020 involve either a combination sentence or a community corrections order alone.[13] So, a community corrections order is not totally out of range, but it is only available in a limited exceptional range of cases involving this serious offence.

[12]Sentencing Act 1991 (Vic).

[13]Sentencing Advisory Council, ‘Sentencing Snapshot No.237 Aggravated Burglary’, April 2020.

39I have reached the conclusion that the community interest would not be served by imposing a sentence of imprisonment on you. This would have an impact on your partner, on your sons Liam and Jordan, and would have a significant impact on your own psychological health. In all those circumstances I am prepared to extend very considerable leniency to you in all the circumstances, bearing in mind that the Court of Appeal has indicated that a community corrections order is an onerous sentence. 

40By way of punishment I will also impose a significant community work obligation on you. The community will also be assisted and protected by a requirement that you engage in an offender behaviour program as directed by the Office of Corrections.

41Essentially I am proposing a 30-month community corrections order with the usual mandatory terms including 200 hours of unpaid community work over that period and a requirement that you participate in programs that address the factors relating to your offending, which includes an anger management program; as well as be under supervision. That is an aggregate sentence for the two charges.

42Ms Long, as I indicated in my sentencing remarks, I am extending considerable leniency and mercy to you, on the basis of your lack of prior convictions, your age and the circumstances of the offending. But I have reached the conclusion that the interests of justice can be met and sentencing can be met by a community corrections order, which you have signed. That order requires you to attend at the Geelong Community Corrections Centre there within two business days, given them a call, it's lockdown but you can ring them up and they will arrange in due course for you to be inducted, and for the next 30 months you are under their supervision, of the officer-in-charge, and they can come and visit you and if they give you directions, you have got to undertake it, whatever they tell you to do, including when they book you into an anger management program.

43Then on top of that, over that 30-month period you have got to undertake 200 hours of unpaid community work as they direct, and you can credit against that 200 hours any hours that you spend in a program that they direct you to. 

44In addition to that, over that two and a half year period, if you commit a crime that carries a term of imprisonment, then that breaches the community corrections order and I will make a special trip down to Geelong to deal with you for a breach. Similarly, if you fail to comply with directions of the Office of Corrections, or fail to attend for community work, that type of thing, breach the order, that again is a breach of the order and you will be brought back and you can be resentenced on the original charges. 

45So I am giving you this one opportunity. A woman of your age, in the circumstances where the offending, and I do not want you to let the system down and if it was not for the fact that you did not have prior convictions, and you had these problems in the past that gave an explanation as to why you went around there, you could well have been in prison.

46I declare that if you had not have pleaded guilty I would have imposed a sentence of nine months' imprisonment, followed by a community corrections order. I want to thank your counsel, Mr Lawrence, for his comprehensive plea, and also Ms Rutherford for her assistance in this matter.

47Are there any other matters, Ms Rutherford?

48MS RUTHERFORD:  No, Your Honour.

49HIS HONOUR:  Right, very well.  Mr Lawrence?

50MR LAWRENCE:  No, Your Honour.

51HIS HONOUR:  All right. I thank both parties and I will sign this community corrections order and it will be sent back down to Geelong. Adjourn the court sine die.

52OFFENDER:  Thank you.

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[2]Contrary to Common Law.