Director of Public Prosecutions v Mackay

[2021] VCC 919

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01199

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMANTHA MACKAY

---

JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2021
DATE OF SENTENCE:	7 July 2021
CASE MAY BE CITED AS:	DPP v Mackay
MEDIUM NEUTRAL CITATION:	[2021] VCC 919

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated burglary — recklessly cause injury — intentionally destroy property — sentence indication — plea of guilty — COVID-19 — victim impact statement — family violence — intimate partner violence — intimate partner abuse — post-traumatic stress disorder — PTSD — moral culpability — burden of imprisonment — criminal history — remorse — no full and insightful remorse — prospects of rehabilitation — general deterrence — specific deterrence — denunciation — just punishment — community protection — community correction order — CCO

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence: community correction order of three years

Section 6AAA declaration: total effective sentence of three years with a non-parole period of 18 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Farrell	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A Hurst	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Samantha Mackay, you have pleaded guilty to one charge of aggravated burglary (charge 1), for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to one charge of recklessly cause injury (charge 2), for which the maximum penalty is a term of imprisonment of five years, and one charge of intentionally destroy property (charge 3), for which the maximum penalty is a term of imprisonment of 10 years.

2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.

3In brief, the circumstances of your offending were as follows.

4The victim is Belinda Vanderlei. You and Ms Vanderlei had known each other for around 13–14 years. Ms Vanderlei had been in an on-again/off-again relationship with your brother Dylan, and you had been friends for the first few years.

5Ms Vanderlei was living alone at Jamina Court, Norlane. You had been to her house before. On Saturday 25 January 2020 at around 11:30pm, Ms Vanderlei was sleeping in her bedroom at the front of the house. She awoke to banging on the front door. Ms Vanderlei went to the door because she thought it might have been your brother Dylan. The porch light was on but the hallway light was off.

6Through the dark glass front door, Ms Vanderlei could see a figure outside on the porch. You had already opened the unlocked security door. Ms Vanderlei partially opened the front door and you pushed your way inside, intending to assault her (charge 1 — aggravated burglary).

7You started yelling and grabbed Ms Vanderlei by her hair. You pulled her by her hair to the ground in the inside doorway, yelling things like ‘You fucked me ex’, ‘Your daughter fucked him as well’ and ‘Stay away from my brother’. Ms Vanderlei yelled back, ‘what the fuck are you on about?’. She was on her knees and also holding your hair.

8You let go of Ms Vanderlei’s hair and started throwing punches. Ms Vanderlei tried to protect herself by covering her head and holding her head down. You threw seven to eight punches. Your punches were hard, hitting her to the mouth, nose and head (charge 2 — recklessly cause injury). During the scuffle, the hallway table was pushed further down the hallway and items on it were dislodged.

9You stopped punching Ms Vanderlei and left via the front door. Still on her knees, Ms Vanderlei went to close the front door. As she closed the door, you threw a small lantern that had been sitting on the porch through the glass panels. The glass smashed and the lantern ended up inside on the hallway floor (charge 3 — criminal damage).

10Ms Vanderlei called 000 immediately. Her call was recorded at 11:45pm. Police arrived at the scene at 11:50pm. They observed that the decorative yellow glass insert from the front door was smashed and glass was spread throughout the inside of the hallway.

11Ms Vanderlei looked shaken and distressed. Constable Gillies observed that she had bruising, swelling and redness to her face and forehead, and cuts and swelling to her lips. Photographs were taken of her injuries. Photographs were also taken of the outside and inside of the front entranceway. Ms Vanderlei gave a statement just after midnight.

12Police then made contact with you via telephone. You said you were home, but when police attended, you were not there.

13On 27 January 2020, Ms Vanderlei attended at the Corio Police Station and further photographs were taken of her injuries. Ms Vanderlei also attended at the First Point Medical Centre. She was examined by a doctor. He noted that Ms Vanderlei had sustained:

·        a bruised swollen left lower lip;

·        milder bruising at her right eye upper lid and right forehead;

·        a bruise to the inner aspect of her right upper arm;

·        tender and painful red discoloured upper chest, middle and left side; and

·        sore tender back of neck and suboccipital area.

14On 30 January 2020, Ms Vanderlei attended at the Geelong Hospital, reporting chest wall pain. The hospital examination recorded scattered bruising on the body and a 50 cm bruise to the left upper anterior chest, and a tender para-sternum left upper anterior chest. Ms Vanderlei was prescribed analgesics.

Arrest and Record of Interview

15On 28 January 2020, you attended at the Corio Police Station for interview. You primarily gave a ‘no comment’ interview, but you did state the following:

·        That you knew Ms Vanderlei

·        That Ms Vanderlei was in an on-again/off-again relationship with your brother Dylan

·        You agreed that there was history between you and Ms Vanderlei

·        You had stayed at Ms Vanderlei’s house before, months ago, with your brother

·        You did not contact Ms Vanderlei and she did not invite you over

·        Ms Vanderlei would know your voice

Plea of Guilty

16A committal hearing took place in this matter, at which Ms Vanderlei gave evidence. Directions hearings were held in this Court on 17 November 2020 and 2 February 2021. A sentence indication hearing was held before me on 23 April 2021. You pleaded guilty to the charges on the indictment today, although you did indicate that that would be your course at the indication hearing. This is not an early plea but is nevertheless a significant matter in mitigation. Given the delays in the administration of criminal justice in this State caused by the COVID-19 pandemic, your plea has significant utilitarian value.

Impact upon the Victim

17Tendered on the plea was a victim impact statement made by Ms Vanderlei. Ms Vanderlei says that your offending has caused her considerable fear and concern for her wellbeing.

Personal Circumstances

18I turn now to your personal circumstances. A psychological report by Ms Pamela Matthews, forensic psychologist, and Daria Sizenko, provisional psychologist, with whom you spoke on 8 December 2020, was tendered at the plea. In outlining your personal circumstances, I refer to this report and to the submissions made by your counsel, Ms Hurst.

19You were born in June 1988 and are 32 years old. You grew up in Ballarat with your parents and your two younger brothers. Your parents were churchgoers, but after leaving the church when you were around 10 years old, your father started to drink and later became involved with drugs. Your father was physically abusive to your mother and was often unfaithful to her. Your parents separated when you were 12, and you moved to Geelong to reside with your mother.

20You struggled to cope with your parent’s separation. You initially had no interest in maintaining a relationship with your father, but you reconnected after your father became sober. Your father now resides in Brisbane. Prior to the COVID-19 pandemic, he would travel to Victoria every few weeks to visit you and the children.

21Your mother lives on the Gold Coast. You are close and speak daily.

22After relocating to Geelong at the age of 12, you became friends with a girl who you later discovered was your paternal half-sister. She had a twin brother, your paternal half-brother. You continued a friendship with your half-sister until she passed away from an asthma attack in 2021. You reported that you did not ‘have the chance to grieve’ your half-sister’s death because of issues with your relationship with your then-partner, which I will discuss later in these reasons. You have a good relationship with your other siblings, with the exception of your brother Dylan, who is still in a relationship with Ms Vanderlei.

23You did well academically in primary and secondary school, although you had some behavioural issues following your parent’s separation. You left school at the start of year 11. You fell pregnant with your first daughter when you were 17 years old. You worked at a chicken ranch and sometimes helped out at your aunt’s milk bar, stopping work just before your daughter’s birth. You fell pregnant for the second time when your first daughter was only six months old.

24You resumed work when your younger daughter was four years old, working evening shifts at a fish and chip shop. When your younger daughter began primary school, you completed a hairdressing course and worked in a salon. You briefly worked for your father, and then relocated to Queensland to stay with your mother. You completed a beauty therapist diploma in Queensland. You moved back to Victoria and worked in the Target head office for around a year, then at the Sacred Heart College canteen, before returning to hairdressing. You are currently completing a course in disability and hope to work in the disability sector.

25You are the primary carer of your two daughters, currently aged 13 and 11. You began a relationship with their father when you were only 16. You began living together and fell pregnant at 17. He became violent and abusive. Over the 15-year period of your relationship, you were the victim of serious family violence. You report that emotional and verbal abuse was a constant, but physical abuse would vary. You were often hit, punched and choked by your partner. He was intensely jealous and used coercive control. He would visit your places of work, including the fish and chip shop and the hair salon, and stare at you through the window, which caused you anxiety and contributed to you leaving these jobs.

26Your partner physically assaulted members of your family, including breaking your brother’s arm, breaking your brother Dylan’s jaw, and assaulting your father. You and your family were too frightened to report this to the police. Throughout their childhood, your daughters witnessed ongoing family violence.

27You made numerous attempts to leave your partner, beginning when your first daughter was still an infant, but he would track you down and physically attack you. You were finally able to end the relationship in October 2019. You have an active intervention order against him. He has recently started regular telephone calls with the children but has not pursued visitation rights. I was told today by your counsel, Ms Hurst, that you have recently given evidence against your partner in the Magistrates’ Court and he has been convicted on charges, I presume, of assault against you. He has appealed those convictions.

28After ending the relationship, you started face-to-face counselling, which shifted to telephone counselling since the COVID-19 pandemic. You reported to Ms Matthews and Ms Sizenko that you were previously diagnosed with post-traumatic stress disorder (‘PTSD’) as a result of your ex-partner’s abuse. You reported that you continue to experience flashbacks and nightmares, which have become more frequent since your ex-partner started the telephone calls with the children.

29You also reported suffering from anxiety, stress, frequent headaches, pain in your throat, and difficulty breathing. You believe you have suffered several concussions from your ex-partner’s abuse, but you have never been formally examined for brain or head injury. You are not currently on medication. After your final separation with your ex-partner, you would have a glass of wine a night to cope with your emotions, but you report that you are no longer doing this.

30Ms Matthews and Ms Sizenko gave the opinion that you continue to meet the DSM-V criteria for PTSD, noting your symptoms of recurrent distressing memories, dreams, flashbacks, inability to experience positive emotions, ‘marked alterations in arousal as evidenced by irritable behaviour and angry outbursts with little or no provocations’, and hypervigilance. You report that you are still fearful and have difficulty leaving the house.

31Ms Matthews and Ms Sizenko stated the following:

As the situation with Ms Vanderlei was triggered by Ms Mackay being reminded of her ex-partner and the abuse she endured, it is likely her PTSD symptoms would have had a significant influence on her offending behaviour. Most notably, heightened emotional and physical arousal associated with her fear for her safety and that of her brother’s would have negatively impacted her ability to rationalise and problem solve in the moment. Her state of shock following the confrontation with Ms Vanderlei is likely also influenced by her PTSD, with Ms Mackay disassociating after the volatile confrontation, with the volatile confrontation serving as a reminder of her past abuse.

32On the basis of Ms Matthews’ and Ms Sizenko’s report, your counsel argued that Verdins limbs 1, 5 and 6 were enlivened.[1] That is, your mental health difficulties, to some degree, reduce your moral culpability for the offending, your time in custody would weigh more heavily on you than a prisoner in robust mental health, and there is a serious risk of imprisonment adversely affecting your mental health.

[1] R v Verdins (2007) 16 VR 269 (‘Verdins’).

33I accept the applicability of Verdins limbs 5 and 6 in respect of the effects of imprisonment upon you. However, in circumstances where you were the aggressor in this confrontation, and Ms Matthews and Ms Sizenko’s report was based on your account that the violence began when Ms Vanderlei attempted to remove you from her house by force, I do not accept Ms Matthews’ and Ms Sizenko’s opinion that your PTSD symptoms would have significantly influenced your offending behaviour. I therefore reject the submission that Verdins limb 1 operates to reduce your moral culpability.

Prior Criminal History

34You have one relevant prior criminal matter; although relevant, it is dated. You attended at the Geelong Magistrates’ Court on 16 August 2011 on charges of recklessly causing injury and unlawful assault. You were at a nightclub with your partner. On your account, your partner was flirting with another woman and egging you on about what he would do with her. You physically attacked the woman, dragging her to the floor by her hair. The attack was broken up and the victim left to meet her sister. The victim and her sister later saw you and a friend at a 7-Eleven. The victim approached you, believing you had her mobile phone. You threw several punches at the victim, and your friend dragged her to the ground by her hair. You received an aggregate fine of $1000 without conviction.

Character References

35Character references were tendered upon your plea from your mother, your stepfather, and your son-in-law. All speak of you as being an essentially kind and caring person, who has suffered the debilitating effects of severe domestic abuse.

Remorse

36I turn now to consider the issue of remorse. You did not make any admissions in your interview with police. You have given partially exculpatory accounts of what happened on 25 January 2020, including in your psychological assessment with Ms Matthews and Ms Sizenko. You say you had consumed two glasses of wine earlier in the evening. You maintain that you went to Ms Vanderlei’s home because you thought your brother Dylan would be there. You say you wanted to speak to your brother because you were frightened for his and your safety, having been told earlier in the evening that your ex-partner and Ms Vanderlei may have been having a sexual relationship. You said you were worried that Ms Vanderlei may have disclosed your whereabouts to your ex-partner. You maintain that you were invited into the house by Ms Vanderlei. You maintain that you did not intend to assault Ms Vanderlei, but that she became aggressive towards you, resulting in the physical fight. This is an account that is inconsistent with your plea and is essentially a false account that you gave to the psychologists.

37By virtue of your plea, you accept criminal responsibility for your actions. However, you still do not seem to fully accept the wrongfulness of your conduct, although I do note that you made an apology in Court this morning. However, I am unable to find that you have demonstrated full and insightful remorse.

Prospects of Rehabilitation

38Ms Matthews and Ms Sizenko noted that you seem to have ‘fair insight’ into your mental health issues and ‘interpersonal issues’ with Ms Vanderlei. They gave the opinion that you were not at an increased risk of reoffending. You have the ongoing support of your mother and attend regular psychological counselling. I regard your prospects of rehabilitation as fair in all the circumstances.

Objective Gravity

39Your offending is objectively serious. Ms Farrell, who appeared to prosecute, outlined the many serious features of your offending today before me. Your offending was not spontaneous. You attended at Ms Vanderlei’s home late at night with the intention of assaulting her in her home, a place where she was entitled to feel safe. You forced your way in and physically attacked her. This would have been a frightening experience for Ms Vanderlei, and we have heard her victim impact statement here today, and the ongoing effects of your offending upon her. As was accepted by Ms Farrell today, the injuries in respect of the charge of recklessly cause injury are at the lower end of seriousness. However, viewed globally, yours was objectively serious offending.

Sentencing Principles

40Turning now to the application of the relevant sentencing principles. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community’s denunciation of your conduct and I must, if possible, promote your rehabilitation.

41I take into account the effect of your crime upon your victim, and I take into account current sentencing practices and maximum penalties. A custodial sentence must only be imposed as a sentence of last resort.

42General deterrence, denunciation and just punishment are important sentencing considerations here. I also consider that specific deterrence and community protection are engaged, given your reluctance to fully accept the wrongfulness of your conduct, although I do note that your offending was a one-off incident and your last criminal matter was 10 years ago.

43I indicated at the sentencing indication hearing that I was of the view that, in all the circumstances, I was satisfied that all the relevant sentencing purposes could be given proper expression without the need to sentence you to a term of imprisonment involving an actual or immediate component.

44Ms Hurst submitted a community correction order (‘CCO’) would be within range. Ms Farrell, for the prosecution, accepted that to be so, although did make the submission that given the seriousness of your offending, it should be a lengthy community correction order and punitive in nature. And that is indeed what I intend to sentence you to.

45On charges 1, 2 and 3, you are convicted on all charges and sentenced to a three-year community correction order, the conditions of which are as follows. It will begin today and last three years. You will need to report to Community Corrections within two days. At the moment, Ms Hurst, I believe that can be done by phone, but you will need to check that.

46There will be 200 hours of community work. There will be conditions that you participate in treatment, and 50 hours of your participation in treatment may be credited as work hours for the purposes of this order. I am going to make the condition recommended, that you continue psychological treatment with Sam at Barwon Health. I hope, not having his surname, that will be sufficient to identify who he is.

47You will be subjected to supervision by Corrections, so the people who administer the order will supervise you. There will be judicial monitoring, which will take place at this Court on 7 October at 9:15am. In all likelihood, that will take place via Webex. So, that will mean that you will appear before me and I will see how you are going on your order.

48During the whole of the three years on the order, you are to report to Corrections any change of address, where you live or work, and that is to be done within two clear working days of the change happening.

49Throughout the order, you are to attend all supervision meetings as directed and allow visits by Corrections as directed. You have got to obey all lawful instructions of any Community Corrections officer administering your order. You are not to leave the State of Victoria without prior permission of the Community Corrections officer. And above all, you are not to commit any offences which could result in a term of imprisonment. Ms Mackay, it is not only serious offences like aggravated burglary that carry potential prison sentences. In fact, most criminal charges in Victoria potentially carry a prison sentence. The bottom line is that you are not to commit any criminal activity.

50If you breach the order by either not complying with the conditions or by further offending, you can expect to be brought back before the Court and sentenced. And depending on the circumstances, you could have the order varied or confirmed or extended in time or conditions, or you could be re-sentenced both for any breaches of the order and for this offending, and that could be a sentence of imprisonment.

51Ms Mackay, I understand that you have got a number of issues around anxiety because of what you have suffered. I understand that it is not going to be easy for you to complete this community correction order, but you have simply got to do it. You have avoided a sentence of imprisonment for what was very serious offending, in circumstances where you had a relevant prior, although as we have discussed, it was a bit of a while ago. So, there is only one way for you, Ms Mackay, and that is forward. You cannot take a step back. You have got to obey all the directions that are given to you by Corrections and you have got to complete this order satisfactorily.

52Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), if you had pleaded not guilty, I would have sentenced you to a term of imprisonment of three years, with a non-parole period of 18 months.

- - -