Director of Public Prosecutions v Oberhauser
[2021] VCC 103
•27 January 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-01184
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL OBERHAUSER |
---
JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 January 2021 | |
CASE MAY BE CITED AS: | DPP v Oberhauser | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 103 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms C. Paganis | |
| For the Accused | Mr J. Van Arkadie |
HIS HONOUR:
1 Michael Oberhauser, you are to be sentenced for one charge of aggravated burglary and one charge of assault. The respective maximum sentences are 25 and five years' imprisonment.
2 You pleaded guilty before me on 18 January. You were arrested late on 3 July 2020, the night of offending; but not interviewed. You were taken to hospital for mental health assessment. Committal went by way of hand-up brief on 6 September, after which you entered pleas of guilty. The matter was first listed for plea hearing in the County Court on 6 November.
3 You receive the benefit of your plea of guilty and that high level of cooperation in the proceedings, both from an early stage. Your early plea has facilitated the interests of justice, accepted responsibility and expressed remorse. I find that you feel genuine remorse.
4 At the plea hearing before me on 18 January, Ms Paganis for the Crown tendered a written Crown opening and the victim impact statement of Frederica Heeney. Mr Van Arkadie for you tendered the forensic psychological report of David Ball dated 6 January 2021, a letter by Mark Tilders of the Salvation Army at Marngoneet Prison, certificates related to rehabilitation programs in remand, and the forensic mental health summary by nurse and mental health clinician Terese Wilkinson dated 24 August 2020. Both counsel provided written submissions on sentence.
5 On 18 January, I requested a report as to your suitability for a community corrections order. I have received that report, by Olga Perifanos of Community Corrections. Attached is a mental health screening summary, also by nurse and clinician Terese Wilkinson.
6 The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
7 You had been dating your victim Frederica Heeney for about nine months prior and had often stayed at her home in Melton South. She broke up with you in mid to late June 2020 and asked you to leave. There was some contact in the days following. For example, Ms Heeney was concerned about your mental health. She assisted you to seek treatment at the Royal Melbourne Hospital for that; and related to medication for potential effects of a kidney transplant you had undergone in late 2017. On 2 July, whilst at the hospital, you were heard to speak of feeling unsafe and of suicide.
8 On 3 July, you began to harass Ms Heeney by phone. There were 65 missed calls. Shortly before 10 pm, you went to her home. She heard you screaming outside. You demanded to come inside. There were further phone messages. Ms Heeney called the police at 9.58 pm. You smashed a window to the study and then, at the front door, you reached through the broken glass, unlocked the door and went to where she was in the study, still on the phone to triple 000. This is Charge 1, aggravated burglary.
9 In the study, you assaulted her. This included that you grabbed her from behind, attempted to take the phone and then, as police arrived, were seen to have your hands around her neck and shoulders. This was at 10.15 pm. During all of this, you had been yelling that you loved her. Ms Heeney was clearly very frightened. The triple 000 operator heard her shouting, begging you to stop and go.
10 Frederica Heeney's victim impact statement speaks of that fear and aftermath of anxiety, loss of a sense of security and effect on a number of aspects of her life. There are sleeping problems, heightened feelings of danger and mistrust. Study, social and family life have been effected. She intends leaving her home before you are released. She resents that you have placed her in this situation. I am not complete. There has been considerable victim impact, which must be taken into account in my sentencing.
11 You are a 33-year-old man awaiting this sentence in remand custody. You suffered a traumatic and damaging upbringing. Your mother was 15 at your birth and has had her own problems with drugs and mental health. Your father died when you were one. Child Protection became involved at two years. You were with an adopted family until early teenage. After that, there are a number of years as a ward of State. You lived in residential group homes and experienced physical abuse, exposure to drugs and alcohol, and sexual abuse. At the end of the Child Protection order, there was homelessness, time in boarding houses, refuges and transitional housing. In about 2014 you achieved stable public housing accommodation in Richmond. Presently, you may return to this after release from prison.
12 You left school after year 8. There was inconsistent employment after that. It is not surprising that you began to abuse drugs early. You were able to control this during your 20s in the context of kidney disease and treatment for that. There was dialysis and then a transplant in December 2017. There was a more functional, productive period. You studied at RMIT and Holmesglen TAFE. In your late 20s you worked in tiling and fencing. However, there was a relapse into drug use during a damaging relationship. There is a 12-month-old child to that relationship. You have the ambition of getting access and playing a role in the child's life. At the time of offending you were using methylamphetamine daily.
13 Psychologist David Ball diagnoses borderline personality disorder, depression and stimulant use disorder. A tendered forensic summary records engagement with mental health services from an early age. There are various diagnoses noted. Particularly your personality disorder and associated depression is connected to damaging early life experiences. Your mental health has impacted on your ability to function and, relevant here, to your capacity for healthy, mature relationships.
14 Your criminal record is not extensive, particularly, it can be said, in the context of your difficult early life. There are three prior court appearances, two in 2005, now over 15 years ago, and one in 2013. There is mainly dishonest offending. Your prior offending is not highly relevant to my sentence.
15 Aggravated burglary is a serious offence, attracting a high maximum sentence. You badly frightened a vulnerable person in her home, one for whom you professed regard and affection. She had tried to help you in the proceeding days. This is offending which makes relevant sentencing considerations and purposes of your moral culpability, deterrence, particularly general deterrence, the need to condemn and proportionately punish. There must be a sentence of imprisonment.
16 Aggravated burglary often attracts a prison sentence of very considerable length. However, in your case, there are also important mitigating or moderating factors. They include the following.
(1) Your pleas of guilty and cooperation. I also accept that what I find to be your expression of remorse to Mr Ball is genuine.
(2) Your personal circumstances and history. Particularly, I take into account the hardships of your childhood development and the damaging effect upon you.
(3) To some extent, the circumstances of offending. I accept that it does not contain some of the very adverse features associated with aggravated burglary. For example, multiple offenders, weapons, serious assault or injury, a sinister criminal context.
(4) Your health and, mainly, mental health. I am not persuaded by Mr Ball's evidence or submission put to me that there is such causal connection to the offending that the Verdins limbs related to lesser moral culpability and reduced importance of purposes such as deterrence have very significant relevance. However, your mental health and circumstances have relevance and importance to the broader context and assessment of the offending, and to my sentence. I accept that your mental health conditions make imprisonment more difficult than for others. I note that, as at 19 January, you presented with symptoms of trauma, as stated in the screening report of Ms Wilkinson. It is not put that your kidney disease and aftermath of the transplant is important to this. It is capable of control by medication and monitoring.
(5) The COVID-19 pandemic also impacts upon your imprisonment. There is added anxiety and stress, restriction of movement, limits to support and to rehabilitation programs available. These things should be seen as applicable to you.
(6) Your prospects of rehabilitation, whilst not seen by me as highly optimistic, should not be discounted or disregarded. You have a limited criminal history. There will be continuing difficulty for you upon release. However, assistance to your mental health and drug abuse problems may give you a legitimate chance of a reformed and more functional life. My sentence should support this aim. Stable accommodation will be important to this. Your public housing placement is not certain, but is subject to application for extended absence, assisted by Mr Tilders of the Salvation Army.
17 These matters should affect both the length of sentence, particularly the component to be served in custody, and the way in which it is served.
18 Having considered and weighed the relevant competing factors, I have decided that I should impose a sentence of imprisonment of relatively modest length bearing in mind the objectively seen serious circumstances of offending, to be followed by community corrections order. That should contain punitive aspects, for example, as to duration, supervision and community work; but also assistance to your mental health and rehabilitation. You are found suitable for a community corrections order. The report states that community work is not recommended, for the reason that that program is suspended because of COVID-19 restriction. This was raised with counsel this morning.
19 I sentence you as follows.
20 On Charge 1, aggravated burglary, you are sentenced to eight months' imprisonment.
21
On Charge 2, assault, to three months' imprisonment. I direct that one month of the sentence for Charge 2 be served cumulative on the sentence for
Charge 1. That is a total affective sentence of nine months.
22 I declare as to that, a pre-sentence detention of 208 days already serviced. I impose on both charges a community corrections order of two years' duration. The usual conditions apply. The additional terms are as follows.
23 That you perform 100 hours of unpaid community work. Fifty hours of program work can be credited against that. I also direct, or include, assessment and treatment for drug abuse or dependency, mental health assessment and treatment, supervision and that you take part in offending behaviour programs; that is, programs aimed at addressing factors relating to this offending.
24 Had you not pleaded guilty, I would have imposed a sentence of three years with a minimum term of 20 months.
HIS HONOUR: Ms Paganis, is there anything else that I need to do?
MS PAGANIS: No, Your Honour.
HIS HONOUR: All right. Now, I'm going to now prepare and I will sign the community corrections order and then it will be conveyed to Marngoneet, is it not?
MR VAN ARKADIE: Yes, Your Honour. This appears to be the label on the screen.
HIS HONOUR: Yes, all right. And then I need to put it to him for his consent. Yes, now, when you're released from prison in about two months, you'll immediately be based on a community corrections order. You've been on one before. Is that right?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. But I must tell you what the conditions are. It says here, attend at the Melbourne Community Correction Services in Franklin Street, Melbourne. Mr Van Arkadie, is that the right one? That relates to Richmond, does it?
MR VAN ARKADIE: That should be the most appropriate one.
HIS HONOUR: Yes, thank you. All right. The usual terms are, you don't commit another offence for which you could be imprisoned, you must comply with this regulation; that you don't attend any program, worksite or appointment affected by alcohol or drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections. You must report to that Community Corrections office, Franklin Street, Melbourne - you'll receive a copy of this order - within two days of your release. There'll be contact with you before you are released. You must let Community Corrections know within two working days of a change of address or job. You must not leave Victoria without getting permission to do so. You must obey all lawful directions of Community Corrections. The additional terms are that you perform 100 hours of unpaid community work over the two-year period. I order that 50 hours of treatment and rehabilitation can be credited against that. A further additional condition is that you be under supervision of a Community Corrections officer. Further, there will be assessment and treatment for drug abuse, assessment and treatment for mental health and also that you will be required, if or as directed, to participate in programs that particularly relate to this offending. Do you understand all of that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: And do you agree to it?
OFFENDER: Yes, Your Honour.
HIS HONOUR: It'll be sent to you and you'll need to sign it. I'll sign it now. Well, there's nothing else to say or do. You'll be released in about two months but you'll be on this order. If you don't comply with the order, you'll be seeing me again. If you do comply with the order, you won't. I wish you the best with it. It's very much in your hands. I don't know whether you have reflected on it. You're 33. I've seen cases of people who use drugs who just move in and out of gaol, and if they survive it all, they've served years and years over time and find themselves in custody as old men. Alternatively, you may be able to overcome this and the bad things that happened to you and engage with your child and live a productive, functional life. I think you're capable of that and I hope you get there.
OFFENDER: Thank you.
HIS HONOUR: All right, well, that's all that needs to be done. Thank you for assistance in this case. We'll turn Mr Oberhauser off and you're both excused.
- - -
0
0
0