Director of Public Prosecutions v Moore

[2022] VCC 1037

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02073

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON MOORE

JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April and 9 May 2022
DATE OF SENTENCE:	1 July 2022
CASE MAY BE CITED AS:	DPP v Moore
MEDIUM NEUTRAL CITATION:	[2022] VCC 1037

REASONS FOR SENTENCE

Subject: CRIMINAL LAW – Sentence.

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms H. Baxter	Office of Public Prosecutions
For the Accused	Ms N. Kaddeche	Gallant Law

HIS HONOUR:

Introduction

1Simon Moore, you have pleaded guilty to an indictment which contains the following four charges:

·Charge 1, aggravated burglary;

·Charge 2, intentionally damage property;

·Charge 3, theft; and

·Charge 4, possession of a drug of dependence.

2

The respective custodial maximum penalties for those offences are 25 years,

10 years, 10 years and 1 years’ imprisonment.

3You have also consented to this court hearing and pleaded guilty to the following three related summary offences;

·Summary charge 4, unlawful assault of the victim Lisa Edwards;[1]

·Summary charge 8, unlawful assault of the victim Michael Bejkovski; and

·Summary charge 9, a rolled up charge of commit an indictable offence whilst on bail.

[1] To ensure that there is no possibility of identification of this victim, these reasons for sentence have been anonymised by the adoption of a pseudonym in place of this complainant’s name.

4The maximum penalty for each of those summary offences is 3 months’ imprisonment.

Circumstances of the offending

5

The circumstances in which you committed those offences are set out in the amended typed prosecution opening dated

5 April 2022.[2]  For current purposes, your offending may be summarised as follows.

[2] Exhibit A on the plea.

6All offences save the drug possession offence were committed during the course of a single criminal episode which occurred on the evening of Thursday 1 July 2021 at and in the vicinity of the home of your former partner, Lisa Edwards.  At that time, you were 43 years of age.  You are now 44, having been born in November 1977.

7You and Ms Edwards had been in a romantic relationship for approximately 3 months while living at separate addresses.  To your knowledge, Ms Edwards lived with her two young children from a previous relationship.  Those children were aged three and six, respectively.

8The relationship between you and Ms Edwards started to decline about a month before the date of this offending and culminated in her deciding to end the relationship on 30 June 2021.  There had been no history of family violence and so no court orders were in place to protect her from you.

9On the day that she ended the relationship, Ms Edwards advised you to collect your belongings from her house, which you did.  While there, you removed a security camera which you had installed a week or so earlier.

10

On the following day, you phoned Ms Edwards to advise her that you wanted to

re-attend her house to collect some wood.  She agreed and arranged for you to attend that afternoon.  You were told that your remaining belongings would be left  outside for you to collect at the same time.  You failed to attend her house as arranged.

11At 7pm that evening, you rang Ms Edwards and advised her that you were not going to collect your belongings.  You accused her of having another man at her house and called her ‘disgusting’ and a ‘whore’.  You also claimed to have looked through her underwear and been able to tell that she was sleeping with someone else.  In response to your accusations, she hung up and then switched her phone to the silent setting and put her two children to bed.

12At approximately 8.30pm, Ms Edwards checked her mobile and noticed that there was a missed call from you.  She then received a text message from you which stated “you don’t want to talk hey?”  She sent a reply text stating that she didn’t want to talk and saw no point in being degraded again.  She also reiterated that the relationship was over and that you were not to contact her again.

13A short time later, at about 9pm, she opened her bedroom blinds and saw you getting out of your parents’ vehicle.  You then walked up to her bedroom and said “Open the door or l’ll kick it in”.  When she refused to comply with that demand, you repeated your threat to kick the door in.  She could also hear you speaking to someone on your mobile and telling them that you were going to kick the door down.  After walking to her front door, you then took a step back as if preparing to kick the door.  At that point, Ms Edwards rang 000.

14Just as you had threatened to do, you kicked her front door down, causing a glass panel to shatter.  Despite her efforts to hold the door shut, you pushed your way past her and into her house while she was still on the phone to the 000 operator.

15As you entered, you were yelling “where is he?”.

16You then walked into her bedroom and searched the ensuite after first kicking the door with sufficient force to dislodge it from its frame

17Unsatisfied, you then walked to the back of the house where you knew the children’s bedrooms were located.  You then kicked in each child’s bedroom door and searched each bedroom despite each child being in their bed at the time.

18No doubt concerned about this development, Ms Edwards came to check on her children.  As she walked into her son’s bedroom, you struck her to the right eye using the back of your hand.  This blow caused her to drop the phone she was carrying.  It is this action of yours in striking Ms Edwards which forms the factual basis for summary charge 4, unlawful assault.

19After this, you went to the bathroom and kicked that door down while continuing to say “where is he?”

20Finally, you walked to the spare bedroom and searched it.

21Having discovered no male present within the house, you then went to the front door area and proceeded to smash a pot plant against the doorbell.

22Then, you re-entered Ms Edwards’ bedroom and ripped the doorbell connection from the wall.

23You then conducted a further search of the house, checking in each of the rooms while saying “who is he” and “if I find him he’s fucking dead”.

24At that point, Ms Edwards attempted to call 000 again.  On seeing that, you grabbed her phone and said “that’s mine now”.

25You then left her house and drove away.

26However, you returned moments later.  After parking about 15m from her home, you started to rev the engine.  By that time, a number of concerned neighbours had started to assemble on the street.  Ms Edwards asked them to call 000.

27One of her neighbours, a man named Michael Bejkovski, became concerned for his vehicle after hearing the sound of another vehicle being driven erratically up and down the street and loud banging noises.  He went outside and moved his vehicle off the nature strip and then started to drive around the block intending to return home and park in his driveway.  He was stopped en route, however, when you drove in front of his vehicle and blocked its path.  Mr Bejkovski waited for about 30 seconds before driving down a side street.

28As he arrived at the front of his house, you drove at him from the opposite direction.  Fearing a collision, he reversed his car to the end of his street, by which time you drove up alongside his vehicle.  He attempted to placate you by winding down his window and asking if everything was ok.  You did not reply.  Instead you drove away but then quickly moved your vehicle in front of his vehicle.  After getting out of your vehicle, you yelled “are you fucking her?”  You then reached into his vehicle through the open driver’s side window and put your arm around his neck.  When he brushed your arm away, you said “I know your face, and watch out.”  This conduct on your part provides the factual basis for summary charge 8, unlawful assault.

29The offence of aggravated burglary alleged in charge 1 on the indictment, is based on you having entered the home of Ms Edwards as a trespasser with the intent to assault a person therein while knowing that someone was present.  I say knowing rather than knowing or believing because the facts make clear that you knew that Ms Edwards was inside her house at the time you entered.

30The offence of criminal damage alleged in charge 2 on the indictment, relates to the damage you caused to 7 doors, a doorbell and a pot plant, all of which belonged to Ms Edwards.

31The offence of theft alleged in charge 3 on the indictment, relates to the mobile phone that you stole from Ms Edwards while inside her home.

32Summary charge 9, commit indictable offence whilst on bail, is, as I have already noted, a rolled-up charge because you are charged with having committed two indictable offences not one.  Those offences are aggravated burglary and possess drug of dependence.  The latter offence relates to a small amount of methamphetamine that was found in your possession when police arrested you on the following day, 2 July 2021.  I also note that the bail you were on at the time was entered in relation to a number of summary driving offences.

Arrest and interview

33You were arrested at a factory in Campbellfield.  In addition to the methamphetamine which is the subject of charge 4 on the indictment, police also located the mobile phone that you had previously stolen from Ms Edwards.

34When you were interviewed by police about this matter, you exercised your legal right to answer ‘No Comment’ to most of their questions.

Pre-sentence detention

35Following the interview, you were charged and then remanded in custody where you remained until being released on bail on 24 August 2021.  At the end of the plea hearing conducted on 9 May 2022, you were remanded in custody pending sentence.  Each of the two periods you have spent on remand are equivalent, namely 53 days.  Thus, the total period of pre-sentence detention to be declared in this matter is 106 days, not including today’s date.

Guilty plea

36You entered pleas of guilty to these charges at the earliest reasonable opportunity, namely at the first committal mention hearing conducted in the Magistrates' Court on 27 September last year.

Prior criminal history

37As is clear from the criminal record filed with this court, you have a limited and largely inconsequential prior criminal record.  Whist it mostly consists of offences involving driving related conduct, you were sentenced in 2001 for offences of carry regulated weapon, possess dangerous article and possess cannabis and in 2004 for two offences of resist police.  Apart from being limited in scope, your criminal history is also aged as your last court appearance was in early April 2008.

38All in all, that history is of no real consequence to my sentencing task in this matter.

Personal circumstances

39I now turn to outline your personal circumstances, Mr Moore.

40They have been helpfully outlined in your counsel’s written submissions and in the two reports prepared by the psychologist Ms Carla Lechner, dated 5 January and 27 April 2022, respectively.[3]

[3] Those reports were tendered on the plea as exhibits 2 and 3, respectively.

41As I have previously observed, Mr Moore, you are now aged 44.

42You are the youngest of two sons in your family.  You have a close relationship with your older brother as well as with your parents with whom you and your 18 your old son Devlin were living until you were remanded in custody pending sentence.  You have had the full custody of your son since he was two years of age.  I note that your father was recently diagnosed with pancreatic cancer.

43You left secondary school part way through Year 11 to take up a cabinet making apprenticeship.  In the latter stages of that apprenticeship, you decided to start your own plastering business at the age of 21.  The collapse of the building industry ended that venture, after which you worked for your father for the next eight years.

44You then moved to Dubbo with your then partner, Sarah, who is also the mother of your son.  There you worked as a forklift driver at the local abattoirs.  The relationship broke down after you believed Sarah had been unfaithful.  Your next relationship was with a woman named Rachel and lasted two years.  However, it too ended in a context where you believed you had been cheated on.

45At that time, you returned to Victoria where you picked up whatever work you could.  After injuring your back, you took prescribed medication for 18 months before resorting to self-medicating with illicit drugs, including Ice and cannabis.  You continue to suffer back-related problems.  In 2017, you commenced your own fencing company.  It was going well until the Covid-19 pandemic hit.  You also lost a number of jobs when you were initially remanded in custody for this matter.  Ultimately, you had to access your savings while on the Job Seeker Allowance.

46Ms Lechner has interviewed you on two occasions; initially on 10 November last year and then again on 26 April this year.  Although not formally assessed, you impressed her as being of average/low average intelligence.  In her view, your ability to engage in reflective and consequential thinking is undermined when you are highly emotionally aroused and/or when you are abusing drugs.

47In the history you provided to Ms Lechner last year, you told her the following, inter alia:

·You have felt anxious during the last couple of years;

·Women lead to anxiety;

·You don’t understand why the intimate relationships you have had ended up with the other party cheating on you;

·You don’t look for relationships anymore; and

·You rarely get angry and ‘mostly walk away’.

48As for your history of drug use, you indicated that you used speed and ecstasy on weekends until you were about 30.  You have also used many other drugs on occasion, including Ice, LSD, cocaine, and Ketamine.  You do not take any prescribed medication.

49You frankly explained your current offending to Ms Lechner in the following terms.  You believed your partner was cheating on you and confronted her about it.  When she denied doing so, you went around to her house to try and catch her out.  You described yourself as being in ‘a weird state’ at that time and as ‘hurting a lot’.  You had used a little bit of Ice prior to attending.  Ms Lechner was of the view that such drug use would have adversely impacted on your judgement and decision-making as well as on your capacity for impulse control.

50Whilst you admitted to Ms Lechner that your behaviour was unacceptable and likely to have ‘scared the hell out of Ms Edwards’, you displayed limited insight as to the likely impact on her two children, saying “they were asleep”.

51In her first report, Ms Lechner concluded that you do not present with an addiction problem per se.  However, she did note that you appear to get easily overwhelmed and that this, together with your drug use, undermine your judgement and decision making.  As she notes, you believe that you have been unlucky in love and the victim of multiple cheating partners.  You became highly distressed at the thought of Ms Edwards also cheating on you.  Your offending actions occurred in that context while you were trying to deal with your insecurities coupled with feelings of jealousy and paranoia, which were partly attributable to your drug use.

52Ms Lechner concluded that you present with some symptoms of Persistent Depressive Disorder.  She strongly recommended medical review to determine if anti-depressant medication is indicated, coupled with a referral to a psychologist for ongoing therapy and attendance at a Men’s Behaviour Change Group.  The latter would be useful, in part, to ensure that you gained a better understanding of all forms of violence on all potential victims.  She advised you to seek both medical and psychological help.

53Given the absence of any history of intimate partner violence in your case, your acceptance of responsibility for your actions and the fact that you are no longer taking drugs, Ms Lechner concluded that you have good prospects of rehabilitation.  But, again, she emphasised that you would be well advised to seek professional help for the issues that she identified and to which I have referred.

54In your most recent attendance on Ms Lechner, you told her that you intended to obtain a Mental Health Plan from your GP and were still looking into a Mens Behaviour Change Group.  You appeared unsure as to what to focus on in any counselling.  She advised you to aim for improved management of your depression, anxiety and angry impulses as a good starting point and to at least get on a waiting list for a Mens Behaviour Change Group.

55In her latest report, Ms Lechner notes that you have become socially isolated.  It remains the case that you are not taking any prescribed medication.  In the context of providing her a different history as to the nature, extent and length of your depressive symptoms, she formed the view that you tended to engage in avoidance and denial as a means of managing your negative feelings, hence your reluctance to engage with professional services.

56With regards to your offending, you again acknowledged it was wrong and would have caused fear in your former partner.  In respect of the impact of your behaviour on the children, you told Ms Lechner that you were “not thinking at the time” but acknowledged that your conduct was shameful.

57Ms Lechner noted that your mood remains low but that you are no longer obsessing about being betrayed.  As she also notes, you no longer consume alcohol or use drugs, but are yet to register with a Mens Behaviour Change Group.  In her view, however, you have moved from a victim-blaming perspective to one of personal responsibility.  You now have a better understanding of the potential impact of your behaviour on the children present.

58She considers your prognosis to be favourable and the risk of you reoffending to be low.  That risk would be lowered even further if you continued to abstain from illicit drugs and sought appropriate treatment to assist with improved management of your depression, anger impulses and interpersonal skills.

59Based on the fact that you already suffer from symptoms of depression and chronically low self-esteem, Ms Lechner anticipated that you would suffer a further decline in mood in the event that you were incarcerated since that would reinforce your negative self-perception.

Matters in mitigation

60Your counsel was able to rely on the following matters in mitigation, Mr Moore.

61You pleaded guilty to these charges at the earliest reasonable opportunity.  By so doing, you have saved the community from the cost and time of a trial and, importantly, spared the victims, and in particular Ms Edwards, from the ordeal of giving evidence.  Through those pleas, you have demonstrated a preparedness to facilitate the course of justice.  By opting to take that course during the COVID-19 pandemic when the court is facing a significant trial backlog and intense listing pressures, you are deserving of an even greater sentencing discount than would have been the case in pre-Covid 19 times.  That is because, as the Court of Appeal has clearly stated, the utilitarian value of a plea is greater when entered in those circumstances.

62

The issue of remorse is more nuanced.  On the one hand you have pleaded early and told Ms Lechner that you are ashamed and embarrassed by your actions.  On the other hand, for a while at least, you engaged in victim blaming in relation to

Ms Edwards and had little if any appreciation of the impact that your conduct had or could have had on her two children.  But, in more recent times, you appear to be adopting a greater level of personal responsibility and gaining some level of insight into the impact of your conduct on those children.  However, you do not appear to have embraced the need for counselling and treatment with the sense of urgency that your offending requires.  In the end, all things considered, I am prepared to accept that you are remorseful and that the level of that remorse has been building over time.

63This court must also recognise the more onerous conditions in which you have been in custody while on remand and in which you will be housed while undergoing sentence.  You have no doubt been required to isolate in quarantine conditions, initially.  There have been and will continue to be a number of lockdowns and a compromised ability to have contact visits, access to programs and work opportunities, due to the restrictions Corrections have had to put in place and, to varying degrees, maintain or re-implement, in order to deal with the unpredictability of the COVID-19 pandemic.  Given the problems which this state and NSW have been having in more recent times trying to deal with outbreaks of the virus in gaols, I take into account that you, like many prisoners, will be concerned about contracting the virus in gaol, an environment in which you have only a very limited ability to control your own movements and living conditions.

64Of course, you will find the service of any custodial sentence difficult for other reasons as well.  For example, you are not entrenched in the criminal milieu and have no real knowledge or understanding of what it is like to spend time in prison and the way things work there.  Further, you will no doubt worry about the welfare of your son and sick father and how they and your mother are coping in your absence.

65Together with your compromised mental health, all of those matters lead me to conclude that you will find the service of a custodial sentence very difficult.

66Further, I consider it likely that your mental health will deteriorate to some extent as a result of your continued incarceration.

67As such, I am prepared to conclude that principles 5 and 6 of Verdins case have been engaged.

68I accept that you offended as you did in a context where you became somewhat overwhelmed by the idea that Ms Edwards was cheating on you.  But while that provides an explanation for your offending, it does not come close to providing any excuse or legal justification for acting as you did.  It must also be noted that in part, your thoughts and actions on the evening in question were influenced by the drugs which you chose to take before attending at the home of Ms Edwards.

69To your credit, you no longer drink alcohol or use drugs.

70As I have already noted, you are a man of relatively mature years who has no criminal history with regards to violence, let alone intimate partner violence.  The various character references tendered on this plea confirm that this offending conduct was out of character for you.

71You appear to have a consistent work history and a good work ethic.

72Furthermore, you were prepared to assist the Kinglake community in its time of need following the Black Saturday bushfires in 2009.

73You have the continuing support of your family.

74I agree with Ms Lechner that your prospects of rehabilitation are to be properly assessed as good at this point in time.

Objective gravity of the offending

75Of course, they are not the only matters which this court must have regard to when determining the appropriate sentence in this case, Mr Moore.  The objective gravity of the offending in which you engaged is an important factor that must also be taken into account.

76As indicated by the high maximum penalty for aggravated burglary, any such offence must be regarded as intrinsically serious and treated accordingly.

77There are some serious aspects to the offence that you committed. 

78It was pre-meditated and committed against an intimate partner; you planned to and did attend her home with a view to ‘catching her out’ with the man you believed she was seeing.  It took place at night and at the residential home of the victim where she and her children were entitled to feel safe.  You well knew that she was present before you entered.  I am also satisfied, given the young ages of the children, the time of night and the fact that you knew their mother was at home, that you would have also known that her two children were also present in the house.  Whilst you may not have realised that Ms Edwards was afraid of you before attending, I am satisfied that you would have appreciated that fact shortly before you gained initial entry to her home.  In reaching that conclusion I have had regard to the fact that prior to entering you had threatened her that you were going to kick the door in and then you proceeded to do so and force your way inside. 

79Notwithstanding the absence of a victim impact statement, I have no doubt that Ms Edwards would have been terrified by your disgraceful conduct on that night, including by your forced entry into her home.  The fact that you effected a forced entry is a discrete point and must be given separate consideration; you literally kicked the front door in and overwhelmed Ms Edwards’ attempts to stop you entering. 

80And finally, this offence was further aggravated by the fact that you were on bail at the time.

81Whilst it can be said that some other aggravating factors which can be present in this type of offence were absent in this case,[4] such an exercise is of very limited utility since the focus must remain on what occurred in this case.  There are certainly enough features of this case to mark it out as a serious example of aggravated burglary in its own right.  In my view, it is to be adjudged as falling in the mid-range on the spectrum of seriousness for this type of offence.

[4] For example, no weapon was used and the offence was not committed in company.

82The offence of criminal damage attracts a relatively high maximum penalty.  The circumstances in which you committed this example were no doubt very frightening for Ms Edwards who must have been concerned not just for her own welfare but also for that of her two young children. 

83This was discrete offending from that of the aggravated burglary, which offence was completed once entry was gained.  After entering as you did, you chose to embark on a rampage of destruction that was gratuitous and totally unnecessary.  Not that it would have been justified or warranted, but you could instead have chosen to search the home without causing any damage.  Yet, instead, you literally proceeded to damage multiple doors by kicking them in with force and cause additional damage to other items belonging to Ms Edwards.  This offence was nothing short of outrageous and would no doubt have added to the terror that Ms Edwards was already feeling as you forced your way into her home.  I am also satisfied that the children would have been awoken and frightened by your actions.  The fact that this damage was caused at the victims home does not constitute an element of the offence and can therefore be viewed as an aggravating factor.  Whilst the value of the damage caused has not been specified, it must have been of some significance and certainly not nominal.  In any event, unless and until Ms Edwards had that damage repaired, it would have acted as a constant reminder of the ordeal to which she had been subjected by you.

84And finally in relation to this charge, I note that there is a degree of overlap in respect of one of the doors damaged, the front door, since that damage resulted from the entry you effected to these premises which entry is an element of the aggravated burglary charge.

85The theft of her mobile phone, whilst a spontaneous action on your part, was not a minor offence.  It left her without the means to readily engage with the 000 operator and/or police and prevented her from calling anyone else for immediate support, such as family or friends.  Furthermore, during the time that you remained in possession of that phone overnight, Ms Edwards must have been concerned about whether you were accessing her personal information such as any entries in her address book and any text messages.  The fact that the phone was located by police and no doubt returned to her is a relevant consideration but does not mean that this was a minor or low level example of this type of offence.

86I accept that your possession of the small amount of methylamphetamine was for your own use.  It was, however, committed while on bail.  As such, I consider this offence to be one that falls at or towards the lower end of the spectrum of seriousness.

87As for the summary offences, I note the following.

88Your striking of Ms Edwards occurred not only in her own home but in the presence of her son.  It, along with the rest of your conduct while inside the house shows just how angry and irrational you were.  Furthermore, the blow was directed at her face.  It must have been both frightening and humiliating for her at the time and constitutes a serious example of this type of offence.

89Your assault of the male victim also demonstrates just how enraged and irrational you were that night.  You had no basis for concluding that he knew let alone was in some type of a relationship with Ms Edwards.  Yet, you assumed that to be the case and acted in an initially intimidating and then physically aggressive manner towards him despite his attempts to placate you.  Again, the absence of a victim impact statement does not preclude me from finding that your actions would have had a frightening effect on the victim.

90In relation to the remaining summary offence, care must be taken to avoid doubly punishing you for the same conduct.  As I have already taken account of the fact that the aggravated burglary and possess drug of dependence offences were aggravated by the fact that they were committed whilst on bail, I cannot have any real regard to the acts underlying the commission of those two indictable offences when considering this summary offence.  The real relevance and gravamen of this summary offence is that it represents a wilful disregard by you of the authority of the court which granted you conditional liberty by releasing you on bail.

91Given the nature and seriousness of the offending that you engaged in, Mr Moore, your level of moral culpability must be considered as significant.  You had absolutely no reason or justification for acting as you did.  Ms Edwards, like any woman in our community, is entitled to conduct her life in whatever way she chooses, including by ending a personal relationship.  That was her right and one which she was perfectly entitled to exercise.  I make no finding as to whether she had commenced to see anyone else after ending the relationship with you.  And, quite frankly, that question is of little if any relevance in this case.  What is relevant, is that you were willing to act as you did on an unfounded belief that she was.  And the irony of that is that regardless of whether your perception had any rational basis or not, you still had absolutely no justification, legally or morally, to behave in the outrageous manner that you did.

Relevant sentencing principles

92Quite clearly, the nature and seriousness of this offending requires this court to give significant weight to the principles of denunciation and general deterrence.  Aggravated burglaries and aggressive and intimidatory conduct directed at intimate partners or former intimate partners are unfortunately still commonplace and remain a blight on our community.  The community is right to be concerned by it because it strikes at and undermines the very fabric of our society.  Accordingly, there is a corresponding expectation that when a court sentences an offender for this type of offending, it will impose a sentence that makes it crystal clear that such serious criminal conduct will not be tolerated but rather strongly denounced with a view to providing a suitable measure of discouragement to those in the community who might be contemplating acting in a similar manner.

93Whilst I note that Mr Moore has no previous history for violence, including intimate partner violence, his earlier attempts to victim blame and his less than full insight into the consequences of his conduct, together with the disturbing nature of this offending and his reluctance to engage in early intervention measures through counselling and treatment, lead me to conclude that there remains a need to provide a measure of personal deterrence in his case.  For similar reasons, there is also a need to have some regard to protection of the community.

94This court must impose a just sentence on Mr Moore.  In assessing what is just, regard must be had to the nature and seriousness of his offending, including any aggravating and mitigating features, as well as his personal circumstances, including the matters in mitigation upon which he can rely.  Individualised justice is what is called for.

95This court must also have regard to Mr Moore’s age and prospects of rehabilitation.  He now falls to be sentenced as a man who is approaching his mid-40s.  To the extent that he possesses a prior criminal history it is quite limited and somewhat historic.  It certainly provided no basis or portent for concluding that Mr Moore was capable of acting as he did on this occasion.  To say that there has been an escalation in the nature and seriousness of the offences that he is prepared to commit would be a gross understatement.  In the end, however, all relevant matters considered, I am satisfied that his prospects are good.  No doubt if he successfully engages in and completes the type of counselling and treatment recommended by Ms Lechner, then those prospects will be enhanced.

96As I have already noted, the totality principle arises for consideration in this case in light of the fact that Mr Moore committed multiple offences over a relatively short period on the night in question.  There is a corresponding need, in such circumstances, to ensure that if there is a need for cumulation as between any charges, that it is only done to the extent necessary to recognise the separate and distinct criminality involved in the offences which are subject of those charges.  Even then, there is a need to reassess the sentence that would result in order to ensure that the sentence is not excessive.  The ultimate sentence arrived at must be sufficient to reflect the total criminality involved, but no more and no less.

97In this case, for reasons which should be obvious, there is a need for this court to recognise the separate and discreet criminality involved in a number of these offences and to recognise the fact that there were different victims.  Accordingly, a moderate degree of cumulation is, in my view, warranted.

Sentencing submissions

98

In her submissions on penalty made at the plea hearing on 9 May 2022,

Ms Kaddeche urged the court to sentence Mr Moore to a combination sentence involving a custodial component that did not exceed the 53 days that her client had been in custody during the initial period that he spent on remand.

99Contrastingly, Ms Baxter, counsel who appeared on behalf of the Director, submitted that this offending was serious and that nothing short of a head sentence with a non-parole period was appropriate in this case.

Analysis

100In my view, this case clearly demands the imposition of a custodial sentence in the form of a head sentence with a non-parole period.  The nature and seriousness of the offending here is such that any combination sentence, and in particular one involving such a short custodial component as suggested by defence counsel, is simply not open or within the range, in my view.

101Giving full weight to the observations of the Court of Appeal in Boulton’s case and to cases which have considered that important decision, I simply cannot accept that a combination sentence would be anywhere close to being a just sentence for this offending.  Nor would it be sufficient to accord appropriate weight or recognition to some other important sentencing principles, including general deterrence and denunciation.

102That said, however, it must also be noted that there are some significant matters in mitigation that Mr Moore can call in aid and they have influenced me to impose a more lenient sentence than I otherwise would have.  After having given some additional weight to those matters when considering the appropriate length of any non-parole period, I have concluded that it would be appropriate to fix a relatively low non-parole period.  I have taken that course in order to keep any sentence to the minimum that the justice of this case requires and in order to promote and encourage Mr Moore’s good prospects of rehabilitation.  Such a sentence is designed to afford him the opportunity for release on a relatively lengthy period of supervised release in the community.  In the event that the Adult Parole Board considers it appropriate to so release Mr Moore, the reports of Ms Lechner will provide a good platform upon which to consider any appropriate conditions to attach to any parole order.

Sentence

103This court now formally sentences you as follows, Mr Moore.

104On charge 1, aggravated burglary, to a term of 3 ½ years’ imprisonment.

105On charge 2, intentionally damage property, to a term of 9 months’ imprisonment.

106On charge 3, theft, to a term of 2 months’ imprisonment.

107On charge 4, possess drug of dependence, you will be convicted and discharged.

108On summary charge 4, unlawful assault of Ms Edwards, to a term of 40 days’ imprisonment.

109On summary charge 8, unlawful assault of Mr Bejkovski, to a term of 20 days’ imprisonment.

110On summary charge 9, commit indictable offence whilst on bail, you will be convicted and discharged.

111The sentence of 3 ½ years imposed in respect of the aggravated burglary charge will be the base sentence.

112I make the following orders for cumulation.  3 months of the sentence imposed for charge 2, 14 days of the sentence imposed for summary charge 4 and 7 days of the sentence imposed for summary charge 8 are to be served cumulatively with the base sentence imposed on charge 1 and on each other.

113The total effective sentence is therefore one of 3 years 9 months and 21 days’ imprisonment.

114In respect of that head sentence, I fix a non-parole period of 2 ½ years.

Pre-Sentence Detention

115Pursuant to s.18 of the Sentencing Act 1991, I declare that Mr Moore has served a total of 106 days pre-sentence detention, not including today’s date, in respect of today’s sentence.  I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6 AAA Indication

116Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for his plea of guilty to the charges for which he has received terms of imprisonment today, Mr Moore would have been sentenced to a total effective sentence of 5 ½ years with a non-parole period of 3 ½ years in respect of those charges.

Other Matters

117Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Kaddeche?

118MS KADDECHE:  No, your Honour.

119HIS HONOUR:  Ms Baxter?

120MS BAXTER:  Only one matter, Your Honour, and that is we have omitted to file a disposal order with respect to the drugs previously.  My instructor has drafted that now and I believe it was sent through to your associate.

121HIS HONOUR:  Is that application opposed in the circumstances, Ms Kaddeche?

122MS KADDECHE:  No, Your Honour.

123HIS HONOUR:  In those circumstances I will exercise my discretion and grant that application.

124MS BAXTER:  If the court pleases.

125HIS HONOUR:  Ms Kaddeche, do you wish to use the video link to speak to your client briefly once I leave the Bench?

126MS KADDECHE:  I would seek the court's indulgence to do that, yes, Your Honour.

127HIS HONOUR:  Yes, all right.  You have the court's leave to do that.

128MS KADDECHE:  Thank you, Your Honour.

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