Director of Public Prosecutions v Nicholson

[2022] VCC 1776

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-21-01798

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY NICHOLSON

---

JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2022
DATE OF SENTENCE:	17 May 2022
CASE MAY BE CITED AS:	DPP v Nicholson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1776

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Aggravated burglary - common assault – theft - intentionally cause damage - contravention of a family violence order - impact of COVID-19 – prior criminal history – totality – plea of guilty

Sentence:                  Convicted and sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 10 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Daryl Brown	Office of Public Prosecutions
For the Accused	Mr Simon Kenny	Giorgianni & Liang Lawyers

HER HONOUR:

Introduction

1Timothy Nicholson, you have pleaded guilty to an indictment containing four charges being aggravated burglary (charge 1), common assault (charge 2), theft (charge 3) and intentionally causing damage (charge 4). The maximum penalty for aggravated burglary is 25 years’ imprisonment, for theft and intentionally damaging property is 10 years’ imprisonment, and for common assault is 5 years’ imprisonment.

2You also consented to this court hearing, and pleaded guilty to, a related summary offence of contravention of a family violence intervention order (charge 7) which carries a maximum penalty of 2 years’ imprisonment.

3These offences arise from two separate incidents which occurred on 8 and 9 March 2020. At the time you were 53 years of age.

Circumstances of the Offending

4The full circumstances of your offending are set out in the ‘Summary of Prosecution Opening Upon Plea’ dated 27 April 2022 which was tendered as Exhibit A on the plea. However in shorter compass, yourself and the victim in this matter, Allison Forster[1], were in a relationship which had ended approximately six months prior to the date of the offences. As at 8 March 2020, there was a current family violence intervention order in place which prohibited you from committing family violence against Ms Forster, or causing any other person to breach the order on your behalf.

[1] A pseudonym

5On 8 March 2020 you attended at Ms Forster’s home address at approximately 7.45am. She was present at the address with her daughter. You wanted to be let in, but Ms Forster refused to let you enter as her daughter was home. You left without incident.

6At approximately 11.45am, you returned to Ms Forster’s address. Her daughter had left and Ms Forster was asleep in her bedroom. You banged on the bedroom window and woke Ms Forster up. Ms Forster heard you say ‘Get the fuck up, who do you have in there with you ya fucking slut’. She also heard something which sounded like you trying to lever the window. Ms Forster remained on the bed and stayed quiet as she was petrified and hoped that you would leave.

7You then went to the front door, pulled the security door off its tracks damaging the locking mechanism, and entered her home (that’s charge 1 – aggravated burglary with intent to assault). You rushed towards Ms Forster and stood over her in the bedroom so that she could not get off the bed. You yelled abuse and threats at her whilst she was still on the bed including ‘I’ll fucking smash ya, stop lying, I’ll fucking smash your face in’ and ‘[h]ow can you shit on me like this?’ and also repeatedly told her ‘[y]ou’re not going anywhere’ (that’s charge 2 – common assault). Ms Forster grabbed a pillow, gripped it tight and curled up screaming ‘leave me alone’. At one point she also used a pair of black pants to cover her face.

8Whilst you were in the bedroom, you started rummaging through Ms Forster’s belongings and stole a white Samsung 5 mobile phone, a black Nokia mobile phone and a black video camera (which is charge 3 – theft). You then went to the kitchen, at which point Ms Forster ran from her house to her neighbour’s house. You got on your bicycle and left the address, waving back at Ms Forster. After you had left, Ms Forster returned home and rang Triple 0. Your conduct towards Ms Forster whilst you were in her home was in breach of the prohibition in the family violence intervention order that you not commit family violence against Ms Forster. This conduct constitutes related summary charge 7 – contravention of family violence intervention order.

9At 11.26pm on the same day you were arrested at your home address. Ms Forster’s white Samsung phone was located in your pocket. A search warrant was later executed at your home during which police located Ms Forster’s black Nokia mobile phone.

10At 9am the following morning, 9 March 2020, investigators made enquiries with the Victorian Institute for Forensic Medicine (VIFM) about your fitness for interview. You were handed a portable phone in the holding cell and had a conversation with a doctor from VIFM. Whilst talking to the doctor you demanded Panadol. When you were told to continue the conversation with the doctor, you threw the portable phone into the cell toilet, destroying the phone (that’s charge 4 – intentionally causing damage).

11You were ultimately interviewed that same day and made a mostly ‘no comment’ record of interview. You were then charged and remanded into custody. You were granted bail on 6 May 2020.

12On 17 September 2020 you were arrested and remanded in relation to subsequent offences and have remained in custody since that date. Your bail on this matter was revoked on 6 April 2021 whilst you were serving sentence on the subsequent matters. As a result of this, whilst you have served 665 days in custody since committing the offences the subject of this sentence, only 414 of those days are available to you as pre-sentence detention in this matter.

Victim Impact

13Ms Forster declined to make a victim impact statement.

14However a letter authored by Ms Forster was tendered by your counsel on the plea in which Ms Forster indicated that, in her view, until the incident before the court occurred the relationship between you had been an honest and respectful one and your actions were out of character. Whilst the incident of which she was a victim was serious, and she felt that you needed to be charged to make you understand your behaviour, she stated that you have shown remorse in the aftermath of the incident and that she has no concerns about her safety around you if you were released into the community. She also indicated that she had not renewed the intervention order when it expired and desired that all of the charges against you be dropped. Mr Brown for the prosecution confirmed that the content of this letter was consistent with Ms Forster’s representations to the prosecution and what the prosecution knew of Ms Forster’s current attitude towards both you and the offending against her.

15There is nothing in this particular case to suggest that Ms Forster’s stated views are a by-product of any coercion, or long term control over her by you during the period of the relationship. In the circumstances I am willing to accept that whilst Ms Forster was terrified during the incident and no doubt in its aftermath, she no longer carries that fear of you with her. Further, I also accept that Ms Forster is in a position where she is capable of making an assessment as to whether you are remorseful. 

Prior Criminal History, Subsequent Matters and Totality

16You do have a lengthy prior history dating back to 1985 when you were 18 years of age. Amongst your prior matters you have been sentenced for dishonesty-related offending in the late 1980s and again in 2014; criminal and wilful damage offences in 1994, 1999 and 2010; drug offences including possession, cultivation and trafficking between 1987 and 1996; driving offences; and multiple breaches of community correction orders and community work permits.

17However of greater relevance to my sentencing exercise is your history of assault-related offences. You were sentenced in relation to recklessly cause injury in 1991, unlawful assault in 1994, recklessly causing injury and assault by kicking in 1995, unlawful assault in 1999, making a threat to kill and using threatening words in 2005, and intentionally causing injury in 2014. You have also been sentenced on four previous occasions for breaching intervention orders in 1994, 2002, 2004 and 2005.

18You did have a significant break from offending between 2015 and 2020, but returned before the court on 19 February 2020 whereupon you received a community correction order with work hours only for driving offences and failing to answer bail. You had only been on that order for a matter of weeks when the current offending occurred.

19Throughout that history which I have just summarised you have been sentenced to multiple community correction orders, and to suspended sentences of imprisonment ranging in length from 60 days to three years. However, until the time of committing this most recent offending, you have only ever served three very short terms of actual imprisonment being 3 days for dishonesty offences in 1985, 7 days for driving whilst suspended in 1988 and a total effective sentence of 21 days for driving offences, breach of a community correction order and breach of a community work permit in June 2015. This is, therefore, by far the longest time you have ever spent in custody.

20As I have already noted in passing, you have also committed a number of subsequent offences for which you have already served sentence. You were released on bail on 6 May 2020 and by 10 September 2020 were back before the court on charges including driving offences, possession of drug of dependence, and breaches of both a personal safety intervention order and a family violence intervention order. I am informed by Mr Kenny that the breaches of family violence intervention order related to Ms Forster. You were placed on a community correction order in respect of this offending, but within weeks had been remanded again in respect of further drug offences including trafficking cannabis, and persistent contravention of the family violence intervention order – again relating to Ms Forster. You were sentenced to a term of imprisonment in relation to those offences and breaches of both of your community correction orders on 13 November 2020, and were then sentenced to a further term of imprisonment on 26 March 2021 for outstanding bail offences.

21In considering the sentence to be imposed on the offences before me, I cannot, and do not intend to, further punish you in respect of your subsequent offending. However your subsequent convictions have relevance in two ways to my current sentencing task. First they bear upon my assessment of your prospects of rehabilitation and the weight which I might give to rehabilitation as a sentencing purpose. Secondly, as a result of your further offending you have now spent some 665 days in custody since committing the offences subject of this current matter, 414 days of which is pre-sentence detention in relation to this matter. I have taken this additional time which you have spent in custody into account when applying the principle of totality in this case.

Gravity of the Offending

22Turning now to your offending. Your counsel, Mr Kenny explained that leading in to the current offending you had been in a relationship with Ms Forster for approximately 3 years. You spent a lot of time at her home, but the two of you had never lived together. The relationship between you had been chaotic, in part due to your drug use.  You instruct that in the days prior to the offending you believed that Ms Forster had sold some of your personal property including your washing machine. I am told that you were angry when you went to Ms Forster’s house on 8 March 2020 and were intending to speak with her about the issue of the property. You further told Mr Cunningham, who assessed you for the purposes of this plea, that you were coming down from heroin at the time of the offences. Clearly by reason of your plea of guilty you accept that at the time of entering the house, whatever the reason behind your dispute with Ms Forster, you had an intention to assault her.

23It was submitted by Mr Brown, and conceded on your behalf by Mr Kenny that aggravated burglary is a serious offence which is reflected in the fact that Parliament has chosen to make the offence punishable by a maximum penalty of 25 years’ imprisonment. Further your offending on this occasion could properly be described as a confrontational aggravated burglary which was committed in the context of family violence. Additionally, Mr Brown emphasised that your offending caused Ms Forster to be petrified in her own home – a place where she was entitled to feel safe. He submitted that given the context in which this offending occurred, it is a serious example of an aggravated burglary albeit not at the most serious end of the scale of this kind of offending.

24Mr Kenny on your behalf conceded that because of the inherently serious nature of aggravated burglary with an intent to assault, and the aggravating feature of the offence being committed in the context of family violence, that the sentencing purposes of general deterrence, denunciation and just punishment must have an elevated weight in the instinctive synthesis in this case. However he submitted that the seriousness of your offending must also be assessed in light of the objective features of your conduct. He submitted that your offending occurred during daylight hours in circumstances where you attended at the house on your own, there was no pre-meditation, you did not have a weapon, there was no physical assault, and no injuries were caused. Mr Kenny, like Mr Brown, submitted that for these reasons your offending could not be considered to fall at the most grave end of these kind of offences.

25I agree with the submissions made by both counsel that your offending was serious offending. It was committed against your former partner in her own home – a place where she was entitled to feel safe. It was committed in circumstances where you had relevant prior convictions, had only recently been placed on a community correction order by the Magistrates’ Court (albeit for offences of a different nature), and were also subject to a family violence intervention order which prohibited you from committing family violence against the victim. You knew you were not welcome to enter, having already been told earlier that morning, and yet you returned and persisted. You entered Ms Forster’s home with an intention to assault her and, whilst there was no physical assault, your threatening words and behaviour caused her to be petrified. You also stole some of her belongings during the incident.

26I accept the submission made by Mr Kenny, and conceded by Mr Brown, that your offending lacked some of the aggravating factors which would further elevate the seriousness of this incident – in particular there was no physical assault, no injuries caused, no weapon used and a limited period of time during which the incident occurred. You also committed this offending on your own. However, this was still a serious example of aggravated burglary committed in a family violence context and the sentencing purposes of general deterrence and denunciation; as well as specific deterrence given your prior history; must all carry significant weight in the sentencing synthesis.

27I note however that I have been careful not to doubly punish you in respect of the charge of breach of family violence intervention order in circumstances where I am of the view that that breach increases the gravity of the aggravated burglary. I am of the view that there must still be a separate sentence with some cumulation for the breaching offence which recognises your separate conduct of breaching a court-imposed order, and some elevation of the sentence given your prior history of breaching such orders, but have not further aggravated that sentence in any way by reference to the offending conduct the subject of the aggravated burglary, theft and assault charges which constitute the breaching behaviour.

28Finally, I note that the offence of criminal damage in this case falls at the lower end of the seriousness of criminal damage offences in terms of the circumstances and the value of the property destroyed. I am of the view that only minimal cumulation is required to reflect the separate nature of that incident.

Guilty Plea / Remorse

29Despite running a contested committal, you entered a plea of guilty in this matter at what can be considered a relatively early opportunity. The committal took place on 20 August 2021 and you offered to plead guilty to the current offences shortly thereafter on 21 September 2021. That plea offer was initially rejected, but the matter resolved after two case conferences which were heard before me on 5 and 8 April 2022 respectively. The matter never actually proceeded to the stage of being listed for trial.

30Your plea is a significant one for a number of reasons. It has saved Ms Forster from having to give any further evidence against you in this matter; it facilitates the course of justice; and it has significant utilitarian value which is enhanced by reason of your plea being entered during the current climate of the pandemic. I also accept that your plea of guilty demonstrates remorse for your conduct; a conclusion also supported by the letter from Ms Forster, and your discussions with forensic psychologist Dr Aaron Cunningham as reported in his assessment report dated 29 April 2022.

31In the circumstances I have given you a substantial discount on sentence for your plea of guilty.

Personal Circumstances

32You are now 55 years old. I am told that you were raised in Bairnsdale, having been adopted by your parents when you were an infant. Your father was a manager in the regional office of a government agency working in the area of soil and forestry, and your mother worked in a senior role in a nursing home. You did not have a close relationship with your adoptive parents, and you have had minimal contact with both your biological mother who you did not find until you were 24 years of age, and your biological father who your eldest daughter found when you were 48 years of age. You did however have a close relationship with two of your three sisters, and they remain supportive of you today.

33You attended school until Year 10, however you really struggled within the school system. You report that you were disruptive and badly behaved and that despite being elevated each year, you had in reality only achieved a pass at Year 7 level. You instruct that you never received any treatment for your behaviour whilst at school, however were later diagnosed – when you were thirty years of age – with ADHD.

34You left home at sixteen years of age, having been evicted for being disruptive. This coincided with your exit from the education system. You initially went to live in a caravan park and later moved in with an older lady who took in itinerant children. 

35On leaving school you started working taking any unskilled jobs which you could find, including working as a handyman, on fishing boats, labouring in saw mills, concreting, and in furniture removal. You also started using cannabis, and then quickly moved on to heroin use. You became addicted to heroin and have struggled with that addiction ever since. As a result of your addiction you have been unable to establish a stable career – the longest period of employment you have ever had is just over two years in a sawmill. When your addiction is under control, you are able to work and to maintain relationships with those who are close to you. Indeed, your sister Ms Heather Scott, provided a letter to the court where she spoke highly of the assistance you have given to both her and her husband over the years, particularly in relation to farm work. When your addiction is out of control, your life spirals into chaos. This is reflected not only in your employment history, but also in your personal relationships, and your prior criminal matters.

36You have had two significant relationships. The first was in the 1990s. You have a daughter from that relationship, however your connection with your daughter is complicated by reason of a significant trauma which she suffered after you and her mother had separated. Your second relationship lasted for about 10 years and ended when your partner sadly passed away from a brain haemorrhage. You also have a daughter from this second relationship who is in her 20’s and has two children of her own – a 4 year old and an 8 month old. You continue to have close contact with this second daughter and visit her in Melbourne when you are able to do so.  

37Whilst you have been in custody you have worked, restrictions allowing, in the woodwork shop at Fulham Prison. You have been prescribed anti-depressant medication and received treatment for a heart condition. You have also maintained phone contact with your youngest daughter, two of your sisters and Ms Forster. One of your sisters, Ms Scott, has indicated that she and her husband would be happy for you to stay with them in Queensland on your release from custody whilst you get settled and source appropriate long term accommodation. All of these factors are of relevance when assessing your prospects of rehabilitation.  

Impact of COVID-19

38During the period that you have been in custody, you have been impacted by the pandemic in a number of ways. Whilst you have been able to maintain work in custody for much of the period, most of the rehabilitative courses which you would have liked to have undertaken have been cancelled. You have had to endure lockdowns and have had restricted access to family and friends including no face to face visits. I take this added burden of imprisonment into account both in terms of the period of time which you have already spent in custody, and any further period of imprisonment which I impose.

Mental Health Issues, Risk of Re-Offending and Prospects of Rehabilitation

39As I have already noted, you were assessed by Dr Aaron Cunningham for the purposes of the plea, and a report dated 29 April 2022 was tendered on your behalf.

40Dr Cunningham assessed you as presenting with persistent depressive disorder and generalised anxiety disorder – conditions which he believes you were predisposed to given the emotional disconnection you experienced in your childhood home. However, neither he, nor your counsel, suggested that this was at a level where it constituted a mitigating factor in this case.

41Dr Cunningham also conducted a risk assessment, and assessed you as a moderate risk of future violent offending, with your drug abuse and association with drug-abusing peers presenting as significant risk factors for offending.[2] Dr Cunningham expressed the opinion that the main factor reducing your risk of violent re-offending would be reducing your drug abuse.[3] He was of the view that you would benefit from engaging with drug and alcohol and psychological support; positive peer support through organisations such as Narcotics Anonymous; gaining stable accommodation; and returning to work. He also stated that you would benefit from case management to assist with referrals.[4]

[2]    Confidential Psychological Assessment Report of Dr Aaron Cunningham, dated 29 April 2022, pp3 and 4.

[3]    Ibid, p3.

[4]    Ibid, p4.

42Taking into account Dr Cunningham’s recommendations and the clear links in your criminal and personal history between your drug abuse and your offending, I am of the view that both your rehabilitation, and protection of the community into the future, require that you engage in treatment which addresses your underlying  issues. I also accept that you recognise that you need to take steps to address your issues, and that you will have family support and the opportunity for employment on your release from custody. However, given your previous inability to address your issues when afforded the opportunity on therapeutic orders, and your previous history of offending, I currently have guarded optimism in respect of your prospects of rehabilitation.

Sentencing Submissions

43Turning now to sentencing submissions, Mr Brown, on behalf of the prosecution submitted that general deterrence, just punishment and denunciation should be at the forefront of sentencing considerations in this case. Further, he submitted that specific deterrence also has an important role to play given you have prior convictions for personal violence and breaching intervention orders, and  had only been on a community correction order (albeit for different offences) for a few weeks when you committed these offences. Ultimately Mr Brown submitted that given the nature of the offending and your prior history, a sentence involving a head sentence and minimum term is the only type of sentence which would satisfy the relevant sentencing purposes.

44Mr Kenny, on your behalf, accepted that a term of imprisonment is an appropriate disposition in this case, and conceded that this offending would ordinarily call for a sentence of imprisonment with a non-parole period. However, he submitted that given the significant amount of time which you have spent on remand, the Court has the ability in this case to meet all of the relevant sentencing purposes by imposing a sentence of imprisonment of some significance, in combination with a community correction order. He submitted that the objective seriousness of your offending conduct; the fact that your lengthy period on remand has been served wholly during the period of COVID-19 restrictions; and the value of your guilty plea; are all particularly relevant factors in the determination of the length and type of sentence to be imposed. He noted that the range of sentences imposed for aggravated burglary is wide, and he did not seek to rely on any comparable cases.

45As you are aware, from the comments I made at the conclusion of the plea hearing, I do not agree that a ‘combination sentence’ is open in this case. Even when the substantial mitigating factors, and the principles of totality and parsimony are weighed in the instinctive synthesis, I am of the view that the gravity of your offending, and the need to give adequate weight to the sentencing purposes of general deterrence, denunciation and just punishment, requires me to impose a sentence which is constituted by a head sentence and a non-parole period. However, given the substantial mitigating features in this case and the fact that your rehabilitation and community protection are going to be best met by you having an extended period of supervision and treatment in the community, and also taking into account current sentencing practice, I do intend to impose a head sentence and non-parole period which reflects both the weight of those mitigating factors in the instinctive synthesis and the need for you to have an opportunity available to you to address your underlying issues whilst under supervision. I have, of course, ensured that in imposing the head sentence in this matter that it is a sentence which would still be appropriate if you were required to serve every day of the sentence which I impose.

Sentence

46Mr Nicholson, you will be sentenced as follows.

47On charge 1, aggravated burglary, you are convicted and sentenced to 2 years and 6 months’ imprisonment. This will be the base sentence.

48On charge 2, common assault, you are convicted and sentenced to 6 months’ imprisonment.

49On charge 3, theft, you are convicted and sentenced to 4 months’ imprisonment.

50On charge 4, intentionally causing damage, you are convicted and sentenced to 30 days’ imprisonment.

51On related summary charge 7, breach of family violence intervention order, you are convicted and sentenced to 90 days’ imprisonment.

52I direct that three months of the sentence imposed on charge 2; one month of the sentence imposed on charge 3; fifteen days of the sentence imposed on charge 4; and 45 days of the sentence imposed on related summary charge 7 be served cumulatively on the sentence imposed on charge 1, and with each other.

53The total effective sentence is therefore 2 years, 10 months and 60 days – or, in other words, three years.

54I direct that you serve a minimum period of 1 year and 10 months’ imprisonment before becoming eligible for parole.

Pre-Sentence Detention

55Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that the period of 414 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court. So you have a three-year term of imprisonment. You have to serve at least one year and 10 months before you are eligible for parole. You have already done 414 days of that one year and 10 months, plus whatever benefit you get for lockdowns which I cannot take into account. That is done administratively by the prison. All right. So you have done, yes, at least 14 months of the one year and 10 months that you need to do before you are eligible for parole. So you have got less than eight months to go before you are eligible for parole. Do you understand how that works?

56OFFENDER:  Yes.

57HER HONOUR:  All right.

Section 6AAA Declaration

58Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have received a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 10 months. So you have saved a substantial amount of time in custody by reason of your plea of guilty.

Ancillary Orders

59Pursuant to s78(1) of the Confiscation Act 1997 (Vic) I make a disposal order in relation to three items seized by police being a pair of grey tracksuit pants with pink zips; a black and yellow Richmond Tigers polo shirt; and a Forster puffer jacket.

Other Matters

60Now, I realised as I was reading that out that I never also put on record that I had received the letter from Mr Nicholson's sister in the interim, between plea and sentence.  So I intend to give that an exhibit number and I cannot remember what exhibit we are up to.  All right.  So that will be Exhibit 5.

61MR KENNY:  I forget to tender it, Your Honour.

62HER HONOUR:  No, that's okay.  So that will be Exhibit 5 on the plea.

##E#EXHIBIT 5 -         Letter from Mr Nicholson's sister.

63And the other thing that I need to raise is that apparently summary Charges 5, 8, 9 and 14 were transferred to this court and are still sitting in the system.  Can I assume that they are going to be withdrawn by the prosecution, Mr Brown?

64MR BROWN:  Yes, Your Honour, I seek for those to be withdrawn.

65HER HONOUR:  All right.  So I'll note that Charges 5, 8, 9 and 14 are struck out on the basis that they have been withdrawn.

- - -