Director of Public Prosecutions v Matija Garic
[2021] VCC 1536
•8 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00718
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATIJA GARIC |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 17 September 2021 | |
DATE OF SENTENCE: | 8 October 2021 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Matija Garic | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1536 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Sentencing- Home invasion- Causing injury recklessly-
Verdins Principles- Mental illness- Depressive disorder-
Illness present at time of offending- Relevance of
offender’s background
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins [2007] 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571; Marrah v The Queen [2014] VSCA 119; DPP v Currie; DPP v Daniels [2021] VSCA 272
Sentence: Convicted and sentenced to a total effective sentence of 3 years’
imprisonment with a non-parole period of 18 months.
Section 6AAA declaration: Conviction and total effective sentence of 5
years with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Burnett | Office of Public Prosecutions |
| For the Accused | Mr B Newton | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Matija Garic, you pleaded guilty to a charge of home invasion, and a charge of recklessly causing injury. The first charge carries a maximum penalty of 25 years imprisonment and the second a maximum penalty of 5 years’.
2These offences occurred on 8 November 2020 following a dispute between your mother and some of her neighbours.
3Your mother and the victims in this matter lived in a block of apartments in Dandenong. Your mother, and some of her friends, would sit and smoke cigarettes outside the front of her apartment, causing the smoke to be dispersed into the central column of the block of flats. Other residents would smoke outside the building, or on their balconies which faced outwards, rather than the central area.
4The pollution caused by this smoking was a source of concern for Mr and Mrs Anderson, who lived in a flat a floor above your mother’s apartment. They had a child who was nearly two years old. The cigarette smoke produced by your mother and her friends was caught by the draft in the central area and drawn into the victims’ apartment and into their young child’s room.
5The Andersons raised their concern with the Body Corporate managers, but it appears no action was taken. They also raised the issue with your mother, who disregarded their concerns. She and her friends kept to their practice of smoking outside her apartment.
6The day before these offences Mrs Anderson picked up an ashtray outside your mother’s front door and tipped the contents onto the door mat. The next day, 8 November 2020, at around 3.18 pm your mother collected the cigarette butts and tipped them onto the then empty car-park space belonging to the victims.
7At around 4.10 pm that same day Mr Anderson collected the butts from the car-park and put them in a bag. He went upstairs and threw them over your mother, who was sitting outside her apartment, smoking with her friends. Both he and your mother yelled at each other.
8I have viewed the CCTV footage of this incident, which has no audio track. When Mr Anderson emptied the plastic bag, he made no other movement that appears to be a physical assault. As he walked away the female who was with your mother followed him. She and Mr Anderson had a verbal argument, during which the female was physically aggressive towards him. He seems to me to be backing away, and defending himself from her. Your mother approached these two people, holding a mug.
9The CCTV footage then shows the Andersons standing in the area before your mother’s door apparently speaking to people out of view. Mr Anderson does not appear aggressive. Mrs Anderson’s body language is initially neutral, then more confrontational, but not physically assaultive. This conversation continues for around 8 minutes before the Andersons enter the lift, followed by your mother who appears to be talking to them. There is nothing in her demeanour or actions that indicates she was fearful of the Andersons.
10Call charge records show that your mother called you at around 6.40 pm, with that call lasting around a minute. There was a missed call from her to you at 7.37 pm, and it appears that there may have been a short voicemail left by her for you at 7.45 pm or so.[1] You called her and had a conversation lasting for around 5 minutes at 8.00 pm. Very shortly after that, your mother called your co-offender JH. She then sent you two text messages.
[1]Depositions page 174, show that the call was connected to voicemail for 12 seconds
11You called JH at 8.10 pm but the call was not answered. You spoke to him by phone at 8.56 pm and then again at around 9 pm. You spoke to your mother by phone at around 3 minutes past 9 pm.
12At 9.19 pm you arrived at your mother’s apartment block, in company with your co-offenders - one of whom was JH and the other whom police have not been able to identify. All three of you caught the lift up to the level of the victims’ apartment, arriving at their floor at 9.21 pm. What followed took but a few minutes but has had significant consequences.
13One of the victims’ neighbours saw the three of you at the door of the Andersons’ apartment and asked, “you boys right” to which you responded, after a pause, “yeah”. The neighbour went back inside his apartment.
14One of you knocked on the Andersons’ door, and then again. Mrs Anderson answered the door. You asked her if her husband was home, and if they were the people who threw the ashtray at the woman downstairs. You tried to push the door open, but Mrs Anderson held the door. Mr Anderson had by that time gotten to the door. You pushed inside their apartment, pushing Mrs Anderson aside as you did so.
15Once inside you confronted Mr Anderson and asked him if he had had an argument with the lady downstairs earlier in the day. You pushed him against the wall and smacked him to the head with your hand. After this, you and your two co-offenders started punching and kicking Mr Anderson. head was smashed into the wall and he fell to the ground where all three of you continued to punch and kick him. At one stage, his head was smashed into the ground. His wife tried to assist him, but you and your co-offenders continued the assault, striking him to his face and back. During the assault, one of the offenders said “this will teach you”.
16Both the victims describe you as taking the lead role in this incident, noting that it was you who asked the questions about the confrontation with your mother, and that it was you who commenced the physical attack.[2]
[2]Depositions page 30, paragraph 14, Depositions page 39-40 paragraphs 8-9
17Around three minutes after you and your co-offenders arrived, you left the building.
18Mr Anderson was taken to Dandenong Hospital by ambulance. He had suffered bruising under his left eye, a bruise to his back and various cuts and bruises to his face and knees.
19The next day you and your co-offender JH exchanged a series of self-congratulatory test messages:
JH
Any news big fella?
MGNah brate, I think we all g ha ha
JHThank god bro. Mum say anything?
JHBro I still can’t get over it fuck that was hectic
MGHahahaha same!!!
MGLike a fkn movie bro!
JHFuck I was thinking the same thing
MGLike who ARE WE
MGOne minute im holding babies in my arms in geelong
MGNek minnit hooligan hefs
MGAhahahahaha
JHHahahahahahaah
MGFkn GSSSSSS u n j
MGLove u boys to the fkn death!
MGCant wait to do some fucked up shit again HAHAHAHAHA
JHLove you too my bro for life
JHWHAT A FUCKING EXPERIENCE ☺☺☺
20At 8.52 p.m. on 9 November 2020, your mother sent you a text message which when translated from Croatian, read: “80% of the people in my building look at me like a mom. And you are now king in their eyes”.
Arrest and Interview
21You were arrested on 24 November 2020 and interviewed that day. You made relevant admissions in that interview, and said you had gone to the apartment to scare the victim, not hurt him. You said that your mother had called you, crying, and told you that the Andersons had assaulted or tried to assault her, and tipped the ashtray over her.
22You said you “lost it”, drove to Melbourne, arranged with your mate to go and speak to the man, to “freak him out”[3] and that you wanted someone with you in case there was an issue. You claimed that you invited the man outside to speak to him and thought you saw him reaching for a knife, smirking, so you ran into the apartment and punched him, then slapped him a few times because he “kept mouthing off” [4]
[3]Transcript of Police Record of Interview Answer 87
[4]Transcript of Police Record of Interview Question and Answer 204-228; 309-327
23You said you arranged for JH to come, and he arrived with another man, whom you said you did not know.[5] You said that your two co-offenders stood back and did not take part in the assault. You said you saw the blood on the man, but that you said to yourself you just wanted to rough him up, not kill him, to scare him so that he knew someone would defend your mother.[6]
[5]Transcript of Police Record of Interview Answer 108-111 Compare Answer 231; 360-364
[6]Transcript of Police Record of Interview paragraph 249-254
Victim Impact Statements
24As a consequence of your offending the two victims have had to move from their home. They have suffered financial loss, stress, and anxiety. Mrs Anderson describes the event as the scariest experience of her life. At the time she believed that you and your co-offenders would kill her husband. She was fearful for the safety of her young child. She says:
Our entire lives have been turned upside down because of one cruel and planned attack in the place where we should have felt safest. It is every parent's worst nightmare, the thought of what could have been. If my daughter had been awake she would have witnessed her mother's terrified screams and her father being kicked, punched and shoved against a wall repeatedly and with no remorse.
25Mr Anderson described the helplessness he felt as he was physically attacked, in his own home, by three men. In addition to the physical injuries he suffered his sense of safety and wellbeing have been damaged. He has become anxious about strangers and more concerned about security and safety. His ability to do his job, his financial situation and his social interactions have all suffered. He concluded his victim impact statement saying:
It frustrates and distresses me that someone that I had never met before can suddenly have such a terrifying impact on my life and the life of my family. These emotions often keep me awake at night, angry at how our life has been completely turned upside down by these people and scared of every noise that it may be another stranger wanting to invade our home and perform the same brutal attack on our lives. My life will never be the same again as long as the cruel acts of the perpetrators of this attack remain in my memory.
Personal Circumstances
26You were born in 1989 in Bosnia Herzegovina. Whilst you were still very young the wars in that region of the world reached your homeland, and your mother took you away from your city, reaching Austria, where your father was working. Your family did not have visas to stay in Austria and thus, despite the dangers associated with the war, your family had to leave. Your family had to move about due to the war, and eventually you all were able to leave Bosnia in 1995, when you were around 6 years old.
27You report that during those years you were exposed to numerous terrifying and traumatic experiences, including shelling of the areas around you, witnessing the shooting of your cousin in 1994, the death and torture of family members, and trying to live in an unstable and turbulent war torn environment.
28In 1996 your family was able to move to Australia. Initially you lived with an uncle, who had an established home here, and then in rental accommodation with your family. You learnt English and after having difficulties at your first school, you went to a local Catholic Primary School, in Springvale, and then when your family moved to Endeavour Hills. You became an Australian Citizen in 1998.
29You did well in high school, and took part in extra-curricular activities, such as debating, maths and engineering competitions. You were an excellent student. You then did tertiary studies, completing an Arts degree in 2011. Having completed that degree you started a Masters of Teaching, but despite doing well in that course you ultimately did not finish it.
30You have a solid work history. You have worked in security, and in the building industry. You have certificates for several types of high risk work in that industry. From 2018 you were self-employed, delivering construction materials, using your own vehicle. Your counsel summarised your work history as having been in continuous employment since you finished year 12, although the impact of the pandemic and lockdowns placed considerable strain on your work income.
31Growing up, your home life was marred by your father’s behaviour towards your mother, which escalated to physical violence as time passed. When you were around 25 you tried to intervene to protect your mother, your father banished you from the family home in retaliation. Your mother and father separated in 2016 and divorced in 2017. You report receiving a call for help from your mother after the separation in respect to your father beating on the door to reach her.
32Whilst you were protective of your mother, you were working with your father’s construction business, which led to you having to negotiate a relationship with both of them, in the context of the violence and separation.
33You married in 2015, and now have a two-year-old daughter. Your wife works part time as a primary school teacher. You have a good family life, and your wife has provided a glowing reference about you and your respect and care for her and your family. She writes of your kindness and willingness to help others in need, as well of the help and support you have had to give your mother over the years. She says that the downturn of work during the last two years affected your mental state and that you were showing signs of depression. She says you have expressed on a number of occasions that you regret committing these offences, and of the concern she has for the financial situation of the family when you are incarcerated.
34Letters of support were provided not only by your wife, but also your brother-in-law, and friends. They speak of your kindness and generosity, and how out of character this offending was for you. You have expressed to various people your regret for your actions and for the distress you caused to your victim and his family.
35You have no prior convictions. You are a man of previously good character, who has the respect and love of his family and friends. By all accounts before me, save for this offending, you are a normal law abiding member of the community.
Mental State
36In mid-2020 you sought assistance in respect to anxiety and depression. Your GP referred you for counselling and you were provided with anti-depressant medication. Your stress and symptoms got worse over the next month, particularly due to having no work and thus income. In October 2020 you told your GP you were feeling a little better and that you wanted to cease taking the antidepressant, due to the side effects. Your doctor recommended you wean yourself off that medication. You told Ms Matthews that you ceased that medication around a fortnight before 8 November 2020.
37When you were interviewed by Ms Matthews this year you told her you were managing most days, but were anxious about your legal proceedings. Ms Matthews’ considered that whilst you still are effected by the traumatic experiences of your childhood and youth, the symptoms you experience do not satisfy the diagnostic criteria for post-traumatic stress disorder.[7]
[7]Exhibit D2, Report of Ms Pamela Matthews, forensic psychologist, dated 13 September 2021, page 4
38Looking towards the causes or motivations for this offending, Ms Matthews noted that “under stress, [your] symptoms consistent with Post-traumatic Stress Disorder, Anxiety, and Disinhibition are likely to exacerbate to mild to moderate degrees. Hence, he may display some Externalising (acting out) behaviours under acute psychosocial stress”.[8]
[8]Ibid p 5
39Ms Matthews referred to psychological pressure put upon you by your mother telling you she had been assaulted or nearly assaulted, and your need to act. She noted the stressors in your life of having a young child, your family to support and the decrease in your income. She considered that at the time you were suffering anxiety and depression consistent with a Major Depressive Disorder. Dr Lim had assessed your depression as moderate.
40Ms Matthews explained that depression has a negative impact on a person’s ability to deal with cognitively demanding situations. She said of your reaction and behaviour following your mother’s call:[9]
The combined effect of being flooded with traumatic reactive fear-related arousal in combination with an already diminished depressed mental state has led to Mr Garic experiencing a transient situational, significantly impaired mental state involving emotional, psychophysiological, and reasoning impairment.
Mr Garic's level of arousal, psychophysiological and emotional at the time, is also evident in the reported text messages with the co-offender after they have left the complainant's home. As consequences have emerged, it's only afterwards that Mr Garic has considered the impacts upon the complainants.
[9]Ibid p 8
41In her evidence on the plea Ms Matthews said that the cumulative effect of the trauma you were exposed to as a child, the later exposure to domestic violence, the stress of having a newborn child, the financial stress of the pandemic, and the depression you were experiencing, all led to a situation where, when you received the call from your mother, this triggered a response of fear or anger, so that you were flooded with the physiological response of hormones released or triggered by those emotions.
42She considered that incarceration is likely to make your current anxiety and depression worse, making your time in custody quite difficult. She assessed your risk of reoffending as low, as compared to other violent offenders.
Mental State & Culpability
43In Verdins the Court of Appeal considered the proposition that a serious psychiatric illness or a mental illness could reduce the offender’s moral culpability, as distinct from legal responsibility.[10] The Court said:[11]
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.
[10]R v Verdins & Ors [2007] 16 VR 269, [23]-[26]
[11]Ibid [25]
44Relevant to the evidence before me, the Court said:[12]
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly; (footnotes omitted)
[12]Ibid [26]
45The evidence of Ms Matthews was that the history of trauma and the residual effects upon you did not give rise to a diagnosis of PTSD but formed part of your mental make-up. Similarly, the experiences of seeing your mother under attack from your father formed part of your mental make-up. I accept that in the months prior to the offending you had been suffering from a major depressive disorder, at a moderate level.[13]
[13]Taking into account Ms Matthews’ opinion and the letter from Dr Lim
46It was on this foundation that the call from your mother sparked a strong reaction, of anger and/or fear. I note that you told the police when interviewed that you “lost it” and that you later told Ms Matthews that it triggered fear saying “In the moment, it was the same fear as Croatia. She was pretty scared."[14]
[14]Exhibit D2, Report of Ms Pamela Matthews, forensic psychologist, dated 13 September 2021, page 2
47Ms Matthews explained that a fear and/or anger response causes the body to flood with hormones associated with these emotions and that this in turn affects frontal lobe operation which impacts the ability to reason. She described you as experiencing a “transient situational, significantly impaired mental state involving emotional, psychophysiological, and reasoning impairment”. (emphasis added)[15]
[15]Ibid p 8
48In her oral evidence she equated the terms “significant” and “substantial”. It is my understanding of her evidence that this relates to the effect of the flood of fear or anger based hormones upon your judgment and reasoning ability, not to the depression per se.
49The question is to what extent the depression you were experiencing affected your culpability for this offending. This is relevant generally to the sentencing discretion, and also to my consideration of s5(2H)(c)(i) of the Sentencing Act.
50I must sentence you on the basis upon which the matter resolved, which was that from the time of the call from your mother until just before you entered the victim’s apartment, you were planning only to speak to him, perhaps to frighten him, and to make him aware that your mother was not without support. This plan demonstrates that whilst you were upset, you retained your judgment and ability to act lawfully.
51Your explanation for the offending was that having arrived at the door and spoken to the woman who answered the door, you saw Mr Anderson and saw red. You pushed into the apartment with the intention to assault him, forming the intention to do so only just before or at the time you entered the apartment. There was no additional trigger or stressor, aside from seeing him. Although you say that in the moment you perceived a threat from him, you now accept that was not actually the case.
52Ms Matthews said that the effect of the initial hormonal cascade was extended by the “repeated” calls from your mother, and that the text messages you sent the next day show that the effect of that rush had not yet passed. I do not think that the contacts with your mother after the initial call, and before the offence amount to “repeated” contact. There was one missed call, potentially a short voicemail and one 5 minute conversation. I do not think that your actions and the plan you formulated between the first call and your arrival at the victims’ apartment demonstrate a significant or substantial impairment of your reasoning ability. Furthermore, whilst the messages the next day may reflect that you were still under the influence of the triggering emotions, they also reveal that you felt justified and proud of your actions.
53I accept that the MDD you were suffering from at the time amounts to impaired mental functioning for the purposes of Verdins and s5(2H)(c)(i), and I accept that it, as one of the combination of factors in operation, had some contribution to your reaction to your mother’s call, the anger or fear you felt, and the effect of that anger or fear on your ability to exercise appropriate judgment, to make calm and rational choices or to think clearly.
54I conclude that your depression had some, but limited, impact upon your culpability. Whilst it contributed to your reaction, it was by no means the only operating feature.
55I therefore do not find, under s5(2H)(c)(i) that your major depressive disorder, as diagnosed by Dr Lim and Ms Matthews, substantially and materially reduced your culpability.
Other Verdins Principles
56Your current and past mental states are not of such a nature or severity that it is inappropriate to sentence you to imprisonment, if such a sentence is otherwise called for, nor is general deterrence eliminated or moderated as a sentencing consideration.
57Whilst in your case specific deterrence does not have significant weight, this is because of your previous good character and your prospects for rehabilitation rather than due to your mental health.
58I do accept that your current mental state will make any time in custody more onerous than for a person not suffering from your mental health concerns and that incarceration is likely to have a negative impact on your mental health.
Factors in mitigation
59I take the following matters into account in mitigation of your sentence:
(a) You are now 32 and are a man of previously good character. You have no prior or subsequent involvement with the police, and the references provided confirm that you are otherwise a man with a good reputation and character. Your history shows that despite the traumatic experiences you were exposed to as a child you have become a successful educated man, with good family and friends;
(b) You are remorseful for your offending. Whilst at the time and the day after you were self-aggrandising about your behaviour, you now express appropriate regret for your conduct and its consequences not only on yourself and your family, but for your victims. I note the letter of apology you have written;
(c) You entered a plea of guilty at an early stage. I accept that your plea is a reflection of your remorse, and that it carries significant utilitarian benefit. In view of the effect of the pandemic upon the operations of the court the weight to be given to your plea is all the greater;[16]
(d) You have very good prospects for rehabilitation, in view of your lack of priors, age, lack of criminogenic traits and your strong network of family and friends. I also have regard to Ms Matthews’ assessment of your risk of reoffending as low;
(e) I accept that your culpability was reduced to a limited extent by reason of your existing depression, and your childhood exposure to trauma, and the impact of those factors had upon your reaction to the call from your mother;
(f) Your anticipated experience of prison and the effect of it on your mental state warrants a degree of mitigation;
(g) You are a man of 32 going into custody for the first time, and in circumstances where you will need to undergo quarantine, then reduced contact with friends and family. You will be unable to manage your own movements and this exposure to COVID-19, which is likely to be a concern. I take into account that the experience of prison will be frightening and confronting for you; and
(h) I also take into account also that you will be concerned about your family and their financial situation, and that you will be separated from your young child whilst in custody.
[16]Worboyes v The Queen [2021] VSCA 169 [39]
60I do not consider that the principles in Bugmy and the cases applying that authority, such as Marrah, have application in your case.[17] I take into account the trauma you were exposed to as a child during the war, as part of your personal circumstances and as set out above, but you are not a man who has suffered deprivation, abuse or social disadvantage with consequential effects upon your life. You are not a man who had to commit crimes to survive, nor who was so exposed to violence in your formative years that you inevitably resort to violence.
[17]Bugmy v The Queen (2013) 249 CLR 571; Marrah v The Queen [2014] VSCA 119
Gravity of Offending
61Home invasion is an inherently serious offence. Reflecting the gravity of the offence Parliament has made this an offence where a period of imprisonment, which is not combined with a CCO, must be imposed save for some exceptions.
62You and your co-offenders went to the victims’ apartment to confront and frighten them, in response to your mother’s complaint of having been assaulted. You were alerted to this dispute by your mother several hours before these offences. You arranged to have with you at least one other supporter, JH, with you. Whilst it is understandable that you would take your mother’s side and seek to protect her, the way you went about it was wholly inappropriate. You had ample opportunity during the 2 hours and 40 minutes following the initial call, or in the 1 hour and 15 minutes between your last conversation with your mother and your arrival at the block of flats, to cool down and re-think this course of action.
63You also spoke to your mother around 3 minutes past 9 pm which I did not mention earlier in my summary of this area, but I did in the summary of facts, which was approximately 20 minutes before you arrived at the victims' apartment. The point that I am making about the passage of time between each of those three phone calls is that your behaviour was not a snap or a quick reaction. You had time to think after each phone call and to consider what you were doing.
64This was a serious type of home invasion. Your attendance at the flat with the two other men was planned to intimidate. Once at the scene you with two other men invaded the home of the victims, with the intention of assaulting a person in that home. Having entered with that intention, the three of you assaulted Mr Anderson whilst his wife tried to intervene. Whilst some features which would have made your offending worse were not present, for example the absence of weapons and damaging a door or window to achieve entry, the effect of this is that the home invasion is not at the upper end of the range of gravity.
65In respect to Charge 2, recklessly causing injury, the culpability involved in group assault upon a man in his own home, carried out for the purposes of retaliation against a perceived wrong, is high.
66General deterrence, denunciation and just punishment all carry significant weight in the sentencing exercise. People must be deterred from acting in this way when they have a grievance with another person.
Section 5(2H)(e)
67Your counsel also argued that the range of factors relied upon on the plea in combination amounted to substantial and compelling circumstances which are exceptional and rare, justifying me not making an order for imprisonment which is not combined with a CCO. He argued, first, that a wholly non-custodial disposition was open, then in the alternative that a combination sentence or indeed a short term of imprisonment that did not warrant a non-parole period, was open.
68In making this evaluation I am required by s5(2HC) to:
(a) Regard general deterrence and denunciation of your conduct as having greater importance than the other sentencing purposes set out in s5(1) of the Sentencing Act;
(b) Give less weight to your personal circumstances than to matters such as the nature and gravity of the offence;
(c) Not have regard to your previously good character, other than taking into account your absence of prior convictions;
(d) Not have regard to your early plea of guilty, nor your prospects for rehabilitation;
(e) Have regard to Parliament’s intention that an order for imprisonment not combined with a CCO should ordinarily be made; and
(f) Whether the cumulative impact of the circumstances of the case justify a departure from such a sentence.
69Taking into account not only your personal circumstances including your lack of prior convictions, the nature and gravity of the offence, and the principles of general deterrence and denunciation, I do not consider that the cumulative impact of the circumstances of the case justify departing from Parliament’s intention that a jail term not combined with a CCO ordinarily be imposed.
70This offending, whilst short lived, was serious. You attended at the victims’ home with the intention of scaring them, in company with two other men. Whilst I sentence you on the basis that it was not your plan, whilst travelling to and on arrival at the block of flats, to commit these offences, you did in fact enter victims’ home in company with the intention of assaulting Mr Anderson. You did so at around 9.20 pm, in anger, in order to deliver a beating, in response to what you had been told by your mother had been done by the victim.
71Taking into account all of the matters set out above, you are sentenced as follows:
72Charge 1, Home Invasion – 2 years and 9 months’ imprisonment
73Charge 2, Recklessly Causing Injury – 6 months’ imprisonment.
74I direct that 3 months of the sentence on charge 2 be served cumulatively upon the sentence for Charge 1, resulting in a total effective sentence of 3 years.
75A “non-parole period reflects the minimum time that a judge determines justice requires that an offender must serve having regard to all the circumstances of the offence.”[18] I will set a non-parole period of 18 months, given your good prospects of rehabilitation and previously good character.
[18]DPP v Currie; DPP v Daniels [2021] VSCA 272, [222], citing Bugmy v The Queen (1990) 169 CLR 525, 530-531, 536
76There are no days of pre-sentence detention to declare.
77Pursuant to s6AAA of the Sentencing Act, I state that if you had not pleaded guilty, I would have sentenced you to a total effective sentence of 5 years, with a non-parole period of 3 years.
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