Director of Public Prosecutions v Maddern

[2024] VCC 1455

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00072

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANYN MADDERN

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 13 September 2024
DATE OF SENTENCE:	16 September 2024
CASE MAY BE CITED AS:	DPP v Maddern
MEDIUM NEUTRAL CITATION:	[2024] VCC 1455

REASONS FOR SENTENCE
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Subject:

Catchwords:              Pleas of guilty to one charge of aggravated burglary and one charge of possessing a firearm contrary to a Firearm Prohibition Order – 26 year old offender who apparently committed the aggravated burglary out of some sense of grievance against the victim – two days after aggravated burglary, police found three functioning real firearms in a car which had been driven by the offender, who was subject to a Firearm Prohibition Order – extensive criminal history for violence, dishonesty, weapon and drug offences over 10 years – dysfunctional upbringing during which offender was exposed to violence and ingestion of illicit drugs since the age of 14 years meriting application of full weight of principles in Bugmy v The Queen – lengthy history of drug addiction, non-compliance with rehabilitative court dispositions and service of four terms of imprisonment – offender had been released from serving a 32 month sentence of imprisonment only four months prior to committing subject offences – risk of institutionalisation - prospects of rehabilitation guarded, but some positive signs of rehabilitative change during most recent 424 days on remand.

Legislation Cited:      

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571

Sentence:                  5 ½ years imprisonment with NPP of 30 months

6AAA – 7 years with NPP of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Hogan	Solicitor for Public Prosecutions
For the Accused	Ms K Ljubicic	Giorgianni & Liang Lawyers

HER HONOUR:

1Danyn Maddern, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of possessing firearms whilst being a person to whom a Firearm Prohibition Order applies, which carries a maximum penalty of 10 years’ imprisonment.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[1]  At the relevant time, you were apparently in a relationship with Ms Indya Warner, whose parents lived across the road from your victim, who had been in a relationship with Ms Warner some four to five years earlier.  You and your victim knew each other but not well.  On the day prior to the offending on Charge 1, your victim arrived home in his car at approximately 8.00pm.  Whilst in his car, he observed you driving a silver Holden Commodore past his house and then saw you reverse it back to his house.  You looked at your victim and then got out of the car and approached his car.  You said to your victim, “So it’s you.  What are you doing here?”, and your victim replied “I live here, what’s going on?”  You did not respond and turned as though you were going to leave, but then turned back and said, “Do you want to have a crack?”, to which your victim replied that he did not and did not know what was going on.  You then drove off, but your victim felt concerned and decided to stay elsewhere that night.  He learned, through looking at Facebook, that you were in a relationship with Ms Warner.

[1]Exhibit “A”

3Charge 1 occurred at approximately 6.25pm the following night, 7 July 2023.  Your victim was at home having a shower, when he heard a knock on the door.  He asked who was there and no one responded.  He put on a dressing gown and opened the front door, where he was confronted by you holding a handgun which he thought looked like a Glock.  You held the handgun up and pointed it at your victim’s face, he put his hands up and started walking backwards inside his house.  He asked you what he had done wrong and you responded, “What haven’t you done wrong?”  You then placed both hands on the handgun as though you were trying to pull back the slide and load it.  Your victim believed that he was about to be shot and tried to run past you to get out of the way. However, you grabbed him and pushed him into the couch and struck him three times over the head with the butt of the handgun, causing a gash to the top of his head.  You then left, and your victim, who feared for his safety, called for his sister to come and collect him.  He never again returned to his home.  He arranged for others to collect his furniture and possessions and relocated away from the area.  The incidents on 6 and 7 July 2023 were captured on CCTV cameras located at Ms Warner’s parents’ house across the road from that of the victim.  This is the conduct constituting Charge 1, aggravated burglary.

4At approximately 2.25am on 9 July 2023, police were called to another address in the same area as the victim’s house which was behind the home of Ms Warner’s parents.  The occupants had been woken by an unknown male knocking on their door.  When police attended they found a silver Holden Commodore parked opposite the house and observed Ms Warner walking towards the car.  Police obtained the previously mentioned CCTV footage from Ms Warner’s parents.

5When police examined the silver Holden Commodore, they located an imitation Glock handgun under the driver's seat and a large hunting knife between the driver’s seat and the console.  In the boot, they located a longarm firearm, an imitation pump action shotgun and a locked pelican case.  Inside the pelican case police located a WET568 handgun, a sawn-off .22 rifle, 267 rounds of .22 ammunition, three Comanchero patches and a Comanchero T-shirt. Your fingerprints were detected on the outside of the driver’s door of the Commodore.   Your possession of the longarm firearm, the WET568 handgun and the sawn-off .22 rifle, all of which were functioning weapons, comprises the offending on Charge 2, in circumstances where you had been the subject of a Firearm Prohibition Order for 10 years made on 4 September 2020.

6Police conducted searches for you and, after 13 days, you handed yourself into Frankston Police Station on 20 July 2023.  You were interviewed by police in relation to the offences and gave “no comment” answers, as is your legal entitlement.  You were arrested and remanded in custody on 20 July 2023 and have remained in custody to the present time.

7You are presently aged 27 years, almost 28 years, having been born in October 1996.  You come before the court with a significant history involving offences of violence, unlawful possession of weapons, dishonesty and drug offences.

8Your criminal history reveals that, since you first appeared before Frankston Children’s Court on 25 September 2014, at the age of almost 18 years, you have persistently been before courts for anti-social offending.  This includes some nine charges of assaults or threatening to kill, eleven charges relating to weapons (including one assault with a weapon), four drug-related charges, nine dishonesty of property offences, and nine driving or vehicle-related offences.  You have been before courts on some thirteen occasions relating to breach of Family Violence Intervention Orders, and on some seven occasions in relation to breach of bail conditions. On four occasions you contravened Community Correction Orders, and you have served four terms of imprisonment.  Indeed, on an appeal from the Magistrates’ Court to the County Court on 8 October 2021, you were sentenced to a total effective sentence of 32 months’ imprisonment for a variety of violent and weapon offences.  You told the court that you served the entirety of that sentence of 32 months, less some management days which were deducted due to lockdown occasioned by the COVID‑19 pandemic.  You were released from custody on 5 March 2023.  It is of grave concern that the offending for which I must sentence you occurred only four months later.

9In a plea on your behalf by Ms Ljubicic, the court was told that you were the second child of your parents’ three children.  Your brother, who was seven years older than you, apparently died in dreadful circumstances where his drink had been spiked with rat poison at a party.  You were aged about 14 years at the time.  You had what has been described by your counsel as a very dysfunctional and chaotic childhood.  Your mother had alcohol and drug-abuse issues and was extremely violent towards your father and the children.  Your parents separated when you were approximately eight years of age.  Apparently, following the death of your brother, your mother neglected you, and also introduced you to the use of methamphetamine when you were aged only 13 or 14 years.  Perhaps unsurprisingly, this impacted upon your education, and you ultimately left high school part-way through Year 9 and did not take up any employment in the following years due to drug addiction.

10Your counsel told the court that your father intervened and removed you from your mother’s care when you were approximately 17 years of age.  You lived with your father for two years, and recall this as a time when you felt happy and supported.  You obtained your Certificate III in Meat Processing, Logistics, Warehousing, Workplace Health and Safety and Operation of Elevating Work Platforms and also a forklift licence.  You managed to obtain employment full-time filling gas tanks at Elgas and maintained that job for two years, and purchased your first car.  Unhappily, the relationship with your father broke down following an argument, and you were apparently evicted from his home.  Following that, you had no contact with your father for a year, but then reconciled with him and have remained in contact.

11After being evicted from your father’s home, you returned to live with your mother at the age of 19 years, and relapsed into substance abuse.  You lost your job and went to prison for the first time in early 2017 for a period of 30 days.  At that stage you were still only 20 years old.  You continued to struggle with drug addiction and to commit criminal offences, but did have some periods of stability during which you were employed. You had a relationship with a previous partner who gave birth to a child whom you believed to be your child.  You later discovered that, in fact, it was not your child and you felt used, by your partner. The relationship ended and you relapsed into drug addiction.  Your criminal record is an indicator of the dysfunctional, drug-addicted and violent lifestyle that you were leading.

12Ms Ljubicic stated that, after being released from serving your 32 month sentence on 5 March 2023, you went to live with your mother.  Two weeks later your mother suffered strokes of a dramatic and serious nature which resulted in her being hospitalised.  You relapsed again into drug use and committed the subject offences 4 months later, as I have earlier described.

13Your counsel relied upon the principles in Bugmy v The Queen.[2]  She submitted that the violent and neglectful home environment with your mother, and her having introduced you to methamphetamine whilst you were still a teenager, had impacted adversely upon your neurodevelopment, and that this had endured with the passage of time, resulting in you being a long-term drug addict with associated criminal offending.

[2](2013) 249 CLR 571 at [43]-[45]

14I accept that this is a relevant factor in your case, as detailed in a psychological report by Ms Carla Ferrari dated 2 January 2020[3] and a subsequent report from another psychologist at Ms Ferrari’s rooms, Ms Laura Fleming, dated 3 September 2021.[4]  I did point out to your counsel that there are a number of inconsistencies between the history given to each of those practitioners.  However, I also noted that Ms Fleming stated that you “reported difficulty remembering portions of [your] life due to [your] substance use (likely memories not retained due to intoxication, rather than enduring memory impairment).”[5] Ms Hogan, for the prosecution, conceded that the principles in Bugmy’s case should apply, but appropriately reminded the court that your entrenched anti-social behaviour and drug addiction arising from your childhood trauma also enhanced the need for community protection.

[3]Exhibit “2”

[4]Exhibit “3”

[5]Exhibit “3”, page 5, paragraph 42

15At the conclusion of submissions made on your behalf by Ms Ljubicic, the court had not been very enlightened as to the reasons for your serious offending, other than that you were intoxicated by drugs at the time of offending.[6] Your counsel stated that you had very little memory of the aggravated burglary. You had instructed her that you were somehow acquainted with your victim and did not like him, but your offending against him was not motivated by the fact that he had previously had a relationship with Ms Warner many years beforehand. In other words, it was submitted that you were not engaging in controlling behaviour in relation to your relationship with Ms Warner.

[6]Defence Outline of Submissions for Plea Hearing dated 10 September 2024, marked for identification “1”, paragraph 5

16I here interpolate that, on the CCTV footage taken on 7 July 2023,[7] Ms Warner can be seen engaging with you at various times. This includes interactions with you when your vehicle is parked in the driveway of her parents’ house prior to you crossing the road to your victim’s house[8] at 19.21:17 hours. She is also visible after the commission of the aggravated burglary[9] from 19.23:59 hours to 19.24:57 hours, following which you are seen to exit your vehicle and apparently enter the home of Ms Warner’s parents.  It is difficult to know what to make of this context. Indeed, at 19.24.40, Ms Warner is in proximity to you when you are sitting in the silver commodore in the driveway when you appear to hold up a handgun and wipe it. Suffice to say, for reasons best known to yourself, you decided you would take the law into your own hands and engage in brutal vigilante behaviour towards your unsuspecting victim. There has been no transparent explanation provided for your appalling behaviour towards your victim. All that is apparent is that it occurred in the context of you having some personal grievance with him.

[7]Exhibit “C”

[8]Exhibit “C”

[9]Op cit

17Charge 2 is a rolled up charge which involves three weapons, all of which were functioning weapons.  As previously stated, in the same place as the sawn-off .22 rifle and other two firearms were found, there were 267 rounds of ammunition for that rifle, together with three Comanchero patches and a Comanchero T‑shirt. Also, inside the Commodore was a large hunting knife and an imitation Glock handgun. Your counsel stated that you had nothing to say in relation to this context, and no explanation was given as to why you had the weapons in your possession or where they had come from.

18It was put on your behalf that the sentence of 32 months’ imprisonment (less management days), which you completed on 5 March 2023, was the longest period that you had spent in custody and the longest period during which you had managed to abstain from illicit drugs.  Your counsel stated that you had found the stroke suffered by your mother two weeks after your release extremely confronting and this was a stress with which you ultimately could not cope.  Details of the significant consequences of your mother’s stroke were provided to the Court in a letter from her speech pathologist, dated 14 September 2023.[10]  It is plain that on 23 March 2023 she suffered a stroke with consequences of right-sided hemiparesis and speech and language impairments, namely Aphasia and Apraxia.  The report states that, at that stage, your mother’s moderate Apraxia meant that her speech was often unintelligible to others and this became worse when she was fatigued or stressed, needed to discuss complex matters, or when there was background noise.  The Aphasia resulted in some word-finding difficulty, which also worsened with fatigue or stress.  However, the report concluded that she had made significant improvements, albeit that she had an ongoing communication disability which the author thought would be permanent.

[10]Exhibit “10”

19Your mother was present on the first day of the plea hearing on 10 September 2024 and addressed the Court from the body of the courtroom.  I was able to understand what your mother was saying, albeit that her speech is somewhat slow and, at times, a little slurred.  She told the Court that, after spending some weeks in hospital, she was discharged and referred to an organisation called ERMHA. Up until six weeks ago, a representative from that organisation would come to see her every Thursday to assess her progress.  In addition, she undertook speech therapy and physiotherapy twice per week for 2½ hours at Yawa Swim Centre in Rosebud.  She was transported there either by a community bus or by taxi.  She is currently waiting for her caseworker, Tom King from the Brotherhood of St Laurence, to pursue an NDIS application on her behalf. 

20Three months ago, your mother qualified for a disability pension due to her stroke and its consequences, which come on top of a pre-existing condition of cardiomyopathy.  She stated that she is able to manage her own personal care and do her own housework, and the local council provides meals-on-wheels services to her for five days each week.  She has been paying to have driving lessons and, on 19 September 2024, will attend the Magistrates’ Court for an application for permission to hold a driver’s licence.  She has sold her own home and moved to a two-bedroom cabin in a holiday village, where she has enjoyed meeting her neighbours, whom she describes as “very nice”. She stated that she now has some quality of life under her doctor’s care, albeit that her heart function continues to be compromised and diminished due to her cardiomyopathy.

21It was not submitted by your counsel that your mother’s situation constituted one of exceptional hardship with her requiring you to be her carer. However, the court acknowledges that you have been concerned about how your mother is managing while you are in custody and that you will continue to be concerned while serving the sentence I must impose.  Your mother had stated that you had been attentive to her needs after you got out of prison and you had accompanied her in a taxi to medical and rehabilitation appointments.  She stated that you would get up at 7.30am and were going to the gym and managed to obtain a job as a tree-lopper from a person called “Jamie”. She stated that you would come home every night, and claimed that she was unaware that you were using drugs again. However, in the week before you handed yourself into the police, you did not come home and she claimed that she did not know where you were.

22Ultimately, your counsel, Ms Ljubicic, did not rely to any significant extent on the psychological reports, which had been filed as Exhibits 2 and 3, other than to support the application of the principles in Bugmy’s case to which I have earlier referred.  The prosecutor, Ms Hogan, did not take issue with that position. Ms Ljubicic submitted that it was plain from your dysfunctional background and criminal history that you had struggled with drug addiction since your mother first introduced you to methamphetamine at the age of 13 or 14 years.  She noted that, in the Court Integrated Services Program (“CISP”) report dated 28 May 2019,[11] the author had taken a history that, at that stage, you would smoke up to 3.5 grams of methamphetamine per day and you acknowledged that this substance use was connected with your involvement in the criminal justice system, and that you used methamphetamine to cope with life events when you were unable to manage your emotions in healthy ways.  It had been noted in that report that you had completed a twelve-week court-ordered Men’s behavioural change program four years earlier and a court-ordered anger management course three years’ earlier, both of which you claimed to have found helpful.  You had been recommended for CISP at that stage, as the author of the report thought you put great effort into improving your life, despite ongoing barriers, such as childhood trauma.  You told the author of the CISP report that you were confident that you would not return to substance use because you had gained strategies and tools to manage your emotions in healthy ways. Unhappily, your confidence turned out not to be well placed. 

[11]Exhibit “1”

23When you saw Ms Ferrari for a psychological assessment on 11 December 2019, you reported, at that stage, that you had clarity of mind and were strong willed about staying clean, and currently completing alcohol and drug courses while in custody.[12]  By the time of Ms Ferrari’s psychological report, you had undertaken various courses at Box Hill Institute, during the 3 periods of imprisonment which you had served. These included courses in workplace safety arrangements, writing simple workplace information, writing personal details on basic workplace forms, controlling traffic with a stop-slow bat and implementing a traffic management plan, and providing first aid.

[12]Exhibit “2”, page 5, paragraph [58]

24By the time you were assessed by Ms Fleming at Ms Ferrari’s rooms on 17 August 2021, you again stated that you planned to remain sober in the future and would like to return to work.  This was following the imposition of your third term of imprisonment (twelve months) on 14 January 2020.  Alas, your ambition was not to be realised and you were again sentenced to a significant term of imprisonment for further serious offending at Frankston Magistrates’ Court on 6 September 2021. This sentence was the subject of a successful appeal to the County Court, where, on 8 October 2021, you were ordered to serve the previously-mentioned total effective sentence of 32 months with a non-parole period of 16 months.  While in custody over 2021 and 2022, you completed a number of units in Certificate II and III in Cleaning Operations at Kangan Institute and, also, a course to prepare you to work safely in the construction industry.

25Your counsel urged the Court to note that, for a relatively-young man, not yet 28 years, you had, since that time, now served 424 days on remand for the matters for which I must sentence you.  While on remand, you have undertaken further courses.  One was the Salvation Army Positive Lifestyle Program with sessions involving self-awareness, anger, depression and loneliness, stress, grief and loss, assertiveness, self-esteem and future directions, completed on 18 September 2023.[13]  In addition, you completed courses in the Life Skills Program run by the GEO Group Australia Pty Ltd in “Straight Talking” and “Me, Myself and I”.[14]  You also have been working as a billet doing cleaning work since you were remanded at Fulham Prison.  This has generally involved you working from 8.30am to 2.00pm five days a week.  Initially, you were cleaning “The Hub” at the prison, which involves an art room, conference rooms, the sentence management unit, a chapel and two large halls.  You then moved to spending the same hours on five days per week, cleaning the outdoor education centre, and continue to do so.  I accept that this application to daily work is significant in the context of someone who does not have a significant work history since leaving school.

[13]Exhibit “6”

[14]Exhibit “7”

26While on remand, you also attended a total of eleven sessions of private counselling with Ms Karly Doyle from Ontrack Counselling and Consulting.  This was arranged by you personally, and you attended the sessions online.  The sessions were paid for privately by yourself, with the assistance of your mother and a friend. Ultimately, they came to an end as you were unable to fund them any further.  A report from Ms Doyle, dated 5 April 2024, confirmed that you have engaged during your sessions in relation to trauma from your childhood and significant drug abuse since you were a teenager.  She noted that you expressed your commitment to a drug-free future and acknowledged that your history of offending behaviour was directly linked to your substance use.  You told her that you needed to do something different because you keep getting out of custody and going down the same track, only a short time before you are in trouble again, and need to break the cycle.

27In her first report dated 5 April 2024,[15] Ms Doyle stated that, during all sessions, you had engaged “incredibly well” and presented with a positive demeanour, whilst demonstrating insight, honestly and self-reflection, and that you openly welcomed the treatment, in attempts to develop alternative coping strategies and break the cycle of addiction, offending, and incarceration.  In her second report dated 10 May 2024,[16] Ms Doyle noted that you had continued to engage in weekly treatment and counselling via teleconference from Fulham Correctional Centre.  She stated that you had continued to engage in it “exceptionally well”, whilst demonstrating honesty and insight and continuing to make positive gains through treatment.  The Court commends you upon this initiative, which is the first time in your lengthy history of offending that you appear to have engaged seriously in treatment of any significance addressing the underlying causes of your offending.  This, together with your daily work on remand, represents something of a shift from your earlier terms of imprisonment. 

[15]Exhibit “4”

[16]Exhibit “5”

28I note that you told the Court that when you were sentenced to the term of 32 months’ imprisonment with a non-parole period of 16 months, you did not apply for parole as you were unable to provide the Parole Board with a residential address as you had no support at that stage.  In what is a somewhat ironical quirk of history, your mother, who is largely responsible for your dysfunctional childhood it seems, is prepared to have you live with her and, indeed, would welcome your support since she is still suffering deficits from her stroke on top of her cardiomyopathy.  You told the Court that your mother has a partner, who recently drove your mother from her residential address in Frankston to Fulham Corrections Centre to see you, and that this was the first time that she had ever visited you during any period of imprisonment.  Your mother clearly had very significant demons of her own as you were growing up and the neglect and abuse to which you were exposed, along with her introducing you to methamphetamine whilst your brain was still a teenager, has resulted in you suffering enduring adverse behavioural and psychological consequences, as well as ongoing drug addiction to the present time.

29Also tendered on your behalf was a letter from Brett Morris, chaplain at Fulham Correctional Centre, dated 3 November 2023[17] which elaborated upon the “Positive Lifestyle Program”, which you had completed there, run by the Salvation Army. He stated that this had involved eight sessions, all of which you completed, and he heard you tell the story of your life, particularly concerning your grief about your brother and other experiences.  He expressed the view that you are closer to managing your anger than you realise and have come a long way.  He stated that he was very impressed with your journey and it is clear that you want something new and have a genuine desire to seek change.

[17]Exhibit “8”

30With the assistance of your counsellor Ms Doyle, you wrote a letter to the Court dated 28 June 2024.[18]  You stated that you did not remember the events which constituted the offending and, when you saw the CCTV footage, you could not believe what you had done and also were in a state of disbelief as you read your victim’s statement which he had made to police.  You said that you would apologise to him if you could, and deeply regret your actions and the damage that you caused to him, as well as others.  You expressed the view that all that you have in your power to do is to fix yourself and put yourself in a better position and be there for your mother.  You stated that, when you had been out of prison for only two weeks last year and your mother suffered her strokes, it was too much for you to handle seeing her so unwell, so you went straight back to drugs as you were scared seeing her so weak.  You stated that, before you came back into prison, you were having cocaine for breakfast, and, also, Xanax and Tramadol to bring yourself back down.  You stated that you do not hold any grudges towards your mother and are very scared that you are going to lose her as you had already lost so much else.  You referred to memories of your childhood and the fact that your mother introduced you to drugs when you were just a teenager and you would go to school “off your face”. You described how she would choose her drug dealers over you, so that you slept in the street and had to find your own food.  At one stage, you were sleeping under the neighbour’s deck and this went on for a number of years. You stated that you are only just learning about yourself and how to care for yourself, as when you were on drugs you did not think about what you were doing.  You expressed that you now want a life worth living and you are sick of the negative cycle of making the same mistakes and do not want to go down this path again.  You noted the positive effects of counselling for which you had been paying, that you were drug-free and that you are trying to use your time well in prison doing sport, counselling, working and courses and learning how to deal with things in a better way.  You stated that, if you are to serve more time, you wish to do a Bachelor of Business.  You find it hard being in custody as your mother is not well and you know her heart is fragile and your grandmother, who is 94, has also been gravely unwell and in hospital over recent months.  You stated that you could be using your time more productively to support your family and you want gaol to be hard so that you do not come back and it will be a wakeup call.

[18]Exhibit “9”

31Mr Maddern, I believe you are in no doubt as to the seriousness of the conduct for which I must sentence you.  Your aggressive and unprovoked confrontation of your victim when he arrived home on the night prior to the commission of Charge 1 was offensive, and akin to the immature behaviour of a schoolyard bully.  The actual aggravated burglary is serious because it was clearly premeditated and motivated by some ill-defined grievance you had against your victim.  In our civilised society, it is regarded as fundamental that a person should be entitled to feel safe in his own home.  You arrived at your victim’s door and caught him unaware and vulnerable, wearing only a bathrobe. You are of a strong, stocky build and were wearing a black hoodie, with the hood over your head.   You pointed the imitation handgun to his face and barged your way in, as your victim put his hands up and started walking backwards into his home.  It was an imitation handgun, but plainly your victim believed that it was real.  Although your entry into his home was short-lived, less than a minute, you turned to your side to make it look as though you were about to load the handgun, leading your victim to believe that he was about to be shot.  As he ran past you to get away, you grabbed him and pushed him into the couch and struck him three times over the head with the butt of the handgun.  He was left with an obviously-bloodied gash to the top of his head, the photographs of which were tendered as Exhibit “B”.  To attack someone to the head in this fashion is brutal, dangerous behaviour. 

32After you left, your victim locked the door and arranged for his sister to come to get him. He never again returned to his home.  As previously mentioned, arranged for others to clear out his furniture and other possessions and went to live in another location.  The prosecutor read from the victim’s statement to police made on 7 March 2023. He stated, “I’m in fear of my safety, afraid to return to my own home and I feel like it will keep escalating. I just want to be free of all this”.  He declined to make a Victim Impact Statement when asked by the prosecution.  However, there can be absolutely no doubt that your behaviour caused such terror and intimidation to your victim that he embarked on the serious consequence of abandoning his own home in order to live elsewhere. 

33In sentencing you, this court must let your victim and other victims of such unprovoked, intrusive and intimidating conduct in a person’s own home know that they have the support of the law and will be vindicated.  In sentencing for this serious offence, which has a maximum penalty of 25 years’ imprisonment, the predominant sentencing principle, must be denunciation of your conduct, general deterrence, specific deterrence, in the light of your history of violent conduct, and protection of the community.

34To have followed up your appalling conduct towards your victim on Charge 1 with possessing firearms only two days’ later is alarming.  As I have said, Charge 2 is a rolled-up charge involving three functioning firearms. Although not charged with possession of ammunition, you actually possessed 267 rounds of ammunition for the .22 sawn off rifle.  As previously mentioned, police found an imitation Glock handgun under the driver’s seat, a large hunting knife between the driver’s seat and the console, and the Comanchero paraphernalia inside the Pelican case containing the three functioning firearms. 

35You were well and truly aware that, back on 4 September 2020, you had been served with a Firearm Prohibition Order for a period of 10 years.  On 1 June 2023, that is, only five weeks prior to this offending, police had conducted a Firearm Prohibition Order search at your address, after receiving information you were in possession of a handgun.  In fact, they did not locate any firearms during this search, but reminded you of the conditions of the Firearm Prohibition Order.  You have a history of eleven weapon-related offences, including assault with a weapon, as well as a history of violence.  It is particularly concerning when someone with a significant drug history is also associated with possession of weapons.  Given the absence of any explanation whatsoever as to how you came by the weapons or your proposed use of them, the only available inference on all of the material is that they were possessed for a criminal or sinister purpose, which brings this offence into the more serious category of offences described in Berichon v The Queen; Houssein v The Queen.[19]  As with Charge 1, sentencing principles of denunciation, general and specific deterrence and protection of the community must loom large in sentencing you for this serious offence.

[19](2013) 40 VR 490, paragraph [26]

36Following this offending conduct, police searched for you for thirteen days. To your credit, you ultimately did hand yourself in at Frankston Police Station on 20 July 2023.  You ultimately pleaded guilty at a relatively early stage.  Following a filing hearing on 21 July 2023, your matters were listed for committal mention on 12 October 2023 and then adjourned for a contested committal on 30 January 2024.  Although your victim was required to attend court on that day, he ultimately did not have to give evidence.  No other witnesses were cross-examined, and the matter resolved into a plea to the charges upon which I must sentence you and proceeded by way of straight hand-up brief to the County Court. 

37In sentencing you, you are entitled to a discount on your sentence because of the utilitarian value of your pleas of guilty, in saving the time and expense of a trial and your victim and other witnesses having to give evidence.  I am also satisfied that there is some remorse attached to your pleas of guilty.  Although courts do not often place great weight upon a letter written by an offender to the Court expressing remorse at the time of a plea hearing, your letter to the Court, dated 28 June 2024,[20] has some poignancy, particularly given that you describe your shock and disbelief upon seeing the CCTV footage, as you claim you honestly do not remember the events of the aggravated burglary.  In the context of your longstanding substance abuse and the content of the psychological reports, in particular, that of Ms Fleming dated 3 September 2021[21] where you acknowledge, back then, having difficulty remembering portions of your life due to your substance abuse, I accept this may well be a truthful statement. Thus, while drug addiction, by itself, is not necessarily mitigatory, I accept your drug use at the time of offending was heavy and may well have resulted in clouding of your memory of events because of intoxication.  Hence, to plead guilty when you have no memory, but are faced with evidence of your offending, does show an element of remorse.  In the circumstances, you are entitled to a significant and tangible discount on the sentence which might otherwise have been imposed. 

[20]Exhibit “9”

[21]Exhibit “3”

38I have already referred to the fact that yours is a case where the principles in Bugmy should have application.  Leaving aside the neglect and other trauma of your early childhood with your mother, it is gravely concerning that any child aged 13 or 14 years should be taking illicit drugs, particularly a highly-addictive drug like methamphetamine.  It is shocking that a mother could have introduced her child to such a drug so that it became a behavioural norm from your early teenage years while your brain was still developing.  This is a very serious adverse developmental factor and I consider this is a case where full weight should be given to the principles in Bugmy’s case.  Clearly, you became dependent upon illicit drugs at a very early age and the adverse effect of that has been enduring, along with the other trauma associated with the violence of your home environment as you were growing up.

39Your criminal record speaks for itself in showing how you lacked the ability to take advantage of rehabilitative dispositions, like Community Correction Orders which had treatment conditions attached to them.  It is sad that you felt you could not even apply for parole when you were given a sentence of 32 months’ imprisonment on 8 October 2021, because you had no home to which you could go and no stable address to provide to the Parole Board, and, hence, served the entire sentence.  At the time you should have become eligible for parole, had you applied, you were only 25 years of age.  It is tragic to see the pattern of your criminal record, which shows that from 2017 you have been given a sentence of imprisonment each year to 2021, and that, after serving the term of 32 months’ imprisonment from which you were released on 5 March 2023, you were back in custody on remand for the offences for which I must sentence you, by 23 July 2023.  This is a very concerning pattern from someone who is not yet 28 years of age. While your offending is of grave concern and the most recent psychological assessment of you by Ms Fleming, assessed you as being at a moderate-to-high risk of recidivism.[22] I am concerned that you may end up being institutionalised.  Following the imposition of a 12-month sentence imposed by Frankston Magistrates’ Court on 14 January 2020, it is clear you were granted parole after six months.  If you were, taking into account 91 days pre-sentence detention, you would have been released in about April 2020, but were then remanded again on or about 30 November 2020, for what was ultimately to become your fourth sentence of imprisonment.  If you were not, you were only at liberty for approximately one month before being remanded.  Then, as previously mentioned, having served the 32 months less management days, you were released on 5 March 2023 and were only at liberty for approximately 4½ months before being re-remanded on the matters for which I must sentence you.  Thus, it will soon be four years since you were remanded on your third prison sentence on or about 15 October 2019.  Doing the best I can from your criminal history, I calculate that, since then, you have spent only 11½ or 5½ months at liberty in the community.

[22]Exhibit “3”, page 8, paragraph [69]

40Looking at your criminal history and your pattern of offending soon after having been imprisoned does not inspire optimism as to your prospects of rehabilitation.  In the CISP Report in 2019, Ms Ferrari’s report in 2020 and in Ms Fleming’s report in 2021, you expressed your determination to get off drugs and rehabilitate yourself.  The fact you did not appear to take any very-significant steps to do so adds cause for lack of optimism.  However, having served that 32-month sentence less management days and quickly re-offended, you have now been in custody for 424 days.  As a matter of fairness, it should be stated that there are matters before the Court which might indicate you are maturing.  I have previously mentioned that, since being remanded in custody at Fulham Correction Centre, you have been employed as a billet five days per week over the course of your remand and that this is a significant factor for someone who has led a dysfunctional, wretched and lawless lifestyle.  In addition, you have seriously applied yourself to doing a number of rehabilitative and vocational courses to which I have referred, taking the initiative to obtain privately-funded counselling from Ms Karly Doyle.  Thus, there are now more signs that you are seriously committed to wanting to turn your life around than there has been in the past.  Further, you have managed to forge a relationship with your mother when there are many people who would not be so forgiving for her neglectful and harmful lack of appropriate parenting of you during your childhood.  Your mother’s preparedness to have you come to live with her and, indeed, to visit you for the first time ever in all your times in custody, perhaps shows that your mother feels some responsibility for where you have ended up in life.  What is apparent from your letter to the Court, is that you realise you have lost a great deal, have not many people to support you and now feel concern that your mother, with whom you have rehabilitated a relationship, might be lost to you.  As I have already stated, I do take this factor into account that you will be anxious about your mother’s health while you are in custody.

41I had the opportunity of speaking personally to you on the video link during the plea hearing.  You presented as healthy, and clear-headed and motivated.  It seems it has taken a long time, but perhaps your better self is actually emerging, finally, with such an extensive period away from drugs and adverse influences of other criminals, and that you are gaining some insight, as well as self-esteem and direction, particularly from working each day, and now have an ambition to complete a business course.  It would be wrong of this court to disregard these positive achievements on your part, particularly given the enduring nature of the childhood trauma which you have experienced.  Thus, while I regard your prospects of rehabilitation at the present time as guarded, I think there is hope that you might yet be rehabilitated.  It is clearly in the interests of the community that you do be rehabilitated.  While the granting of parole is a matter for the Adult Parole Board, not the Court, I consider that you may well benefit from a significant period of supervision under parole, which you appear not to have had in the past (unless you were granted 6 months’ parole back in 2020).  In my view, although the head sentences imposed on both Charges 1 and 2 must be significant, I consider that yours is a case where a lengthy period on parole after having spent a quite lengthy period in custody is an appropriate disposition, particularly given that you are still of a relatively young age.

42On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 3½ years.

43On Charge 2, possessing firearms contrary to a Firearm Prohibition Order, you are convicted and sentenced to be imprisoned for a period of 3 years and 3 months.

44The head sentence is that of 3½ years imposed on Charge 1.  I direct that 2 years of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  The total effective sentence is, thus, 5½ years, or 66 months.  I direct that you serve a period of 30 months before becoming eligible for parole.  I declare a period of pre-sentence detention of 424 days to be time reckoned as already served under the sentence imposed this day. 

45As you have been convicted of Schedule 1 offences of aggravated burglary and possessing firearms contrary to a Firearm Prohibition Order, pursuant to s33(1) of the Confiscation Act 1977, I order that the property referred to in the Schedule be forfeited to the Minister.  The property in the Schedule is one imitation Glock handgun, one Birmingham lever action rifle, one imitation shotgun, one Bolt Pelican case, one sawn-off .22 rifle, one imitation WET568 handgun and 267 rounds of .22 ammunition.

46Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 7 years’ imprisonment, with a non-parole period of 5 years.

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