Director of Public Prosecutions v Moore
[2024] VCC 1489
•23 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-24-00277
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BIANCA MOORE |
---
JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2024, 23 September 2024 | |
DATE OF SENTENCE: | 23 September 2024 | |
CASE MAY BE CITED AS: | DPP v Moore | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1489 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Aggravated burglary, common assault, criminal damage
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 12 months imprisonment and 18 month CCO
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. M. Wilson | Office of Public Prosecutions |
| For the Offender | Mr. T. Glass | Slink & Keating |
HER HONOUR:
1Bianca Moore, you have pleaded guilty before me to 2 charges of aggravated burglary, 2 charges of common law assault and 1 charge of criminal damage. You have also entered pleas of guilty to 5 charges of committing an indictable offence whilst on bail which you agreed to have heard before this court.
2The maximum penalty for aggravated burglary is 25 years imprisonment, the maximum penalty for common law assault is 5 years imprisonment and for criminal damage it is 10 years imprisonment. Committing an indictable offence whilst on bail has a maximum penalty of 3 months imprisonment or 30 penalty units.
CIRCUMSTANCES OF OFFENDING
3The circumstances of your offending were comprehensively outlined in the Amended Summary of Prosecution Opening for Plea dated 7 June 2024. I will outline those circumstances here.
4In July 2022 you commenced an on-off relationship with Mr Nicholas Mosiej. Mr Mosiej had until that time been in a de facto relationship with Leonie Straughair.
5After Ms Straughair spent time with Mr Mosiej on the afternoon of Monday 11 September 2022, you and Mr Mosiej attended Ms Straughair’s house at approximately 11.00 pm. As she opened the door, you pushed your way into the house.
6Once inside you confronted Ms Straughair and shouted at her, 'I told you to stay the fuck away. You been with me man? Did you fuck him?' You then struck her with both an open and closed fist, making contact with her face, neck and arms, causing a cut lip and bruising to her jaw, arms and neck.
7After approximately three minutes Mr Mosiej pulled you off Ms Straughair and you both left the property, you screaming 'was he worth it, was he worth it?' before spitting on Ms Straughair. This forms the basis of Charge 1, aggravated burglary, and Charge 2, common assault.
8Later that night you sent Ms Straughair a Facebook message saying 'you dumb bitch, I’ll be back. I’ll be back.'
9At 4.50 am on 14 September 2023, you again went to Ms Straughair’s address, this time in company with Beau Collins. You kicked open the front door, causing the damage alleged in Charge 4, and forcing entry to the house saying, 'Good morning, Leonie, I told you I’d be back.' You approached Ms Straughair and spat on her. This forms the basis of Charge 3, aggravated burglary.
10Ms Straughair took a hammer from under her bed with which to defend herself and pushed you into the lounge room. You said, 'I’m not scared of your hammer. I’ll stab ya.' You then demanded Valium and Lyrica.
11You grabbed Ms Straughair around the neck, punching her several times to the face and then kicking her several times as Mr. Collins stood nearby. Ms Straughair suffered bruising to her jaw and neck which forms the basis of Charge 5, common law assault.
12Police were called at about 5.00 am that morning. Investigators obtained CCTV footage of the incident. You were arrested on 18 September 2023 and made no comment in relation to the allegations.
OFFENCE GRAVITY
13Aggravated burglary is a serious offence, an offence which you committed on 2 occasions. You were in company on the second occasion, the offending was committed late at night on the first occasion and during the night on the second, when your victim was entitled to feel safe in her own home.
14While I did not receive a victim impact statement, it must have been a terrifying experience for your victim, Ms. Straughair, particularly given you told her you would be back after the first occasion and proceeded to return to her home a second time.
PLEA OF GUILTY AND REMORSE
15You indicated a plea of guilty at the earliest opportunity and your plea has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence.
16In those circumstances you have facilitated the administration of justice, and you are entitled to a benefit for that. By your plea of guilty you have demonstrated an acceptance of responsibility for your offending and a degree of remorse.
17I further received a letter of apology from you. It evidences remorse and a degree of insight into your offending. I take this it into account.
PERSONAL CIRCUMSTANCES
18I turn now to your personal circumstances.
19You are 25 years of age, having been born in Tasmania in July 1999.
20You have an older half brother and a younger brother. Your parents were alcoholics and you were exposed to family violence on occasion. The family relocated to Victoria when you were young but once your parents separated in 2012 your mother moved you and your siblings back to Tasmania.
21You report an episode of sexual abuse but were not believed by your mother when you informed her of this. The allegation has not gone any further.
22You were supported by a social worker between the ages of 13 and 15 and had some involvement with Child Protection. You lived with an aunty for a period at the age of 15 before living in a women’s shelter for six months. At this time you began using cannabis.
23You completed a hands-on learning program when you were 14 before returning to mainstream education for Years 9 and 10, after which you left school.
24Your mother stopped drinking and you returned to live with her. Upon learning he had been attempting to contact you, you went to Victoria to live with your father at the age of 16.
25You worked as a cleaner and at a gym before trying to obtain additional qualifications including a Certificate III in alcohol and other drugs. This is an area you are interested in in pursuing further.
26You have had two significant relationships, both of which involved domestic violence.
27Your father died in October 2022. You were very close and his death affected you greatly, leading to an increased use of illicit substances. You require grief counselling to address this.
28In addition to cannabis, you have abused methamphetamines and GHB. You were using drugs at the time of this offending. You report a childhood diagnosis of ADHD and you were found to be experiencing a moderately severe level of depression when assessed by Ms Marlese Bovenkerk in May 2024.
29Ms Bovenkerk also found you to be experiencing symptoms of post-traumatic stress disorder, attention deficit hyperactivity disorder and substance use disorders. She further raised concerns as to an acquired brain injury which was later found to exist in a mild form. Ms Bovenkerk opines that you require 'intensive and ongoing support and supervision to promote abstinence from illicit drugs, adherence to psychological and pharmacological treatment and access to positive, prosocial supports in order to improve [your] prospects of rehabilitation.'
30You were further assessed by neuropsychologist Dr Sami Yamin in June 2024 who found you to have extremely low intellectual functioning which would have been exacerbated due to drug use at the time of the offending.
31Since your remand into custody you have been employed in horticulture and previously in the kitchen and you have completed a number of courses. You have also acted as a billet.
SENTENCING PRINCIPLES AND FACTORS
32Ms Moore, this was very serious offending. There is absolutely no excuse for breaking into someone's home to attack them, motivated by drugs and preservation of a dysfunctional relationship.
33While you have no prior convictions, I consider there to be a necessary element of specific deterrence in the sentence I pass. You need to understand that you cannot act in this way. I further need to protect the community from any such similar behaviour in future.
34I do, however, consider that your prospects of rehabilitation are good if you remain abstinent from illicit substances. You are now 25 years of age and I accept that your age is a relevant consideration.
35General deterrence is also of great importance. Other members of the community must understand that behaviour of this kind will necessarily result in a term of imprisonment. Offending of this nature will not be tolerated by the courts or the community.
36Mr. Glass appearing on your behalf submitted that both R v Verdins [2007] VSCA 102 and Bugmy v The Queen [2013] 249 CLR 571 principles apply in your case, the former due to your diagnoses of PTSD and ADHD. I note you were diagnosed with neither, rather you were found to display symptoms consistent with these conditions.
37In any event your drug use cannot be disentangled from any mental health issues you may have been suffering, clouding any nexus between your symptoms of mental illness and the offending.
38I do, however, accept Ms Bovenkerk’s opinion that imprisonment would likely weigh more heavily on you than on a person without your conditions, enlivening Verdins Limb 5.
39In relation to Bugmy, I do find that your exposure to neglect, alcoholism and drug use at an early age renders your moral culpability less, in a general sense, than that of an offender whose formative years have not been so marred.
40Mr. Glass submitted that a combination sentence would adequately reflect the sentencing principles in this case. Mr. Wilson for the prosecution agreed.
41I released you on bail in June 2024 to attend the Bendigo Bridge Program, however, you were exited from the program due to a relapse into drug use after a short time. A second relapse saw you remanded again, unable to demonstrate your anticipated efforts at rehabilitation.
42I had you assessed for a community corrections order, the extended assessment taking place in custody.
43You made admissions to the assessor as to the offending, consistent with your plea of guilty. You state that you feel your drug use is related to the death of your father and I note that since his passing you have had no familial supports save for an aunty with whom you have limited contact.
44You demonstrated remorse and expressed an interest in rehabilitation.
45Additionally, you have available to you the support of the Australian Community Support Organisation, ACSO, in Dandenong upon your release. They will support you for a period of 2-3 months in addition to the supports available under a Community Corrections Order.
46Ms Moore, would you please stand.
DISPOSITION
47On Charge 1, aggravated burglary, you are sentenced to 6 months imprisonment and a Community Corrections Order.
48On Charge 2, common assault, you are sentenced to 3 months imprisonment.
49On Charge 3, aggravated burglary, you are sentenced to 6 months and a Community Corrections Order.
50On Charge 4, damaging property, you are sentenced to 3 months imprisonment.
51On Charge 5, common assault, you are sentenced to 3 months imprisonment.
52On the 5 related summary offences being 5, 8, 14, 15 and 18, commit indictable offence while on bail, you are sentenced to an aggregate sentence of 1 month imprisonment.
53I direct that Charge 1 be the base sentence.
54I direct that 1 month of each of the sentences imposed on Charges 2, 4 and 5 , and 3 months of the sentence imposed on Charge 3, be served cumulatively on the sentence imposed on Charge 1 and on each other.
55For the avoidance of doubt, the aggregate sentence on the 5 related summary offences is to be served concurrently with the other sentences.
56That makes a total effective sentence of 12 months imprisonment in combination with a Community Corrections Order for a period of 18 months.
57The community corrections order will be with conviction and have the following conditions:
(a) You are to report to Frankston Community Correctional Services, 431 Nepean Highway, Frankston, the following working day from your release from custody;
(b) You are to undergo supervision;
(c) You are to participate in treatment and rehabilitation for drug use;
(d) You are to participate in treatment and rehabilitation for mental health; and
(e) You are to undergo offence specific programs.
58Ms Moore, do you agree to enter that community corrections order upon your release from custody?
59OFFENDER: Yes, Your Honour.
60HER HONOUR: We will have that provided in a moment.
61I declare that pursuant to s.18 of the Sentencing Act 1991, you have served 195 days excluding today by way of pre-sentence detention.
62Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty the sentence I would have imposed would have been 3 years 6 months imprisonment with a non-parole period of 2 years and 4 months.
63By way of explanation, Ms Moore, you have been sentenced to 12 months imprisonment and a Community Corrections Order for 18 months and I have declared that you have served 195 days, excluding today. I explain that because Mr Glass is not here, but he will no doubt talk to you in due course.
64We will now have you sign the Community Corrections Order. You can be seated. We're just having the order printed.
65While that is being printed is there anything else from either counsel.
66MR WILSON: No Your Honour, nothing further, thank you.
67HER HONOUR: Anything further, Mr Glass.
68MR GLASS: No, Your Honour.
69HER HONOUR: While that's printed we'll just stand down temporarily and I'll be back shortly.
70(Short adjournment.)
71HER HONOUR: That order has now been prepared so I'll sign it and I'll have Ms Moore sign it. Thank you. A copy of that order will be sent to you, Mr Glass, and you'll no doubt have time to conference with Ms Moore and explain the order to her in more detail at some point.
72MR GLASS: I will do that, thank you, Your Honour.
73HER HONOUR: Thank you, Ms Moore can be taken out. I thank both counsel – we'll stand down until tomorrow. Thank you.
---
0