Director of Public Prosecutions v Orchard (a pseudonym)

[2023] VCC 313

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY ORCHARD (A PSEUDONYM)

8

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023
DATE OF SENTENCE:	20 February 2024
CASE MAY BE CITED AS:	DPP v Orchard (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 313

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:              Plea of guilty; aggravated burglary – person present; criminal damage; contravene FVIO intending to cause harm or fear for safety.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Total effective sentence of 1 year and 9 months imprisonment with a 12-month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Michael Roper	Office of Public Prosecutions
For the Accused	Mr Adam Maloney (plea)	Victoria Legal Aid

HER HONOUR: 

Introduction

1Zachary Orchard,[1] on 20 January 2023 you were released from prison after serving a 49-day sentence for offences including making a threat to kill, criminal damage, and contravening a family violence intervention order.[2]

[1] A pseudonym.

[2] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

2That same day you were served with a copy of a final family violence intervention order which prevented you from having any contact with or going near your sister, Claire Orchard.[3] 

[3] A pseudonym.

3Six days later, on Thursday 26 January 2023 at about 11:15 pm, Claire and her housemate Brock Catani[4] were at their home when you breached that order and terrorised them.

[4] A pseudonym.

4Mr Catani, who was asleep in the lounge, was woken by the sound of the window smashing near him.  He looked at the house's CCTV cameras and recognised you outside the house.  He also recognised your voice.  You had retrieved some glass bottles from bins which had been placed out for collection and thrown one at their living room window, breaking it. 

5You then threw a second glass bottle at one of the windows on the front bedroom, also causing it to break.

6Mr Catani called out to Claire, who was in her bedroom, to call the Police and she did.

7You then broke through a side gate to the rear of the property and tried to get into their home through the locked rear kitchen door.  At this point Mr Catani raced upstairs and grabbed a bench bar to defend himself.  He came downstairs and the two of you made eye contact while you were still outside the rear kitchen door. You used a broom to break the glass door and then opened the lock from the inside.  Mr Catani tried to stop you by poking you away with the bench bar, but you said you had a gun and he backed off.

8Mr Catani and Claire then retreated to their loungeroom and held the door from the kitchen shut from inside the loungeroom.  You entered the kitchen yelling 'I've got nothing to lose' and repeatedly tried to open the door to the loungeroom but could not do it (Charge 1 – Aggravated Burglary).

9Claire tried to get away from you through the front door, but you headed back outside and around through the carport towards the front of the house, screaming at her all the while.  Mr Catani yelled at Claire to get back inside, which she did.  It was only at this point that their ordeal came to an end when you decided to leave, first on a bicycle and then on foot. 

10CCTV from the property shows that you entered the house at 11:18 pm and left the property at 11:19 pm. (Charge 2 – Contravene Order Intending to Cause Harm or Fear for Safety).

11Police arrived at the scene at 11.44 pm and began looking for you.  They found you close by on a footpath next to a BP service station on the Princes Highway.

12When they approached you began shouting and became aggressive, saying you had a sore back as you had jumped off a building earlier that day in an attempt to commit suicide.

13You were arrested by police and conveyed to Prahran Police Station for interview.

14On arrival at the Custody Area of the Prahran police station you began smashing your head against a plaster wall, about 2-3 times in total, damaging the plaster and injuring yourself.  (Charge 3 – Criminal Damage).

15You were restrained and an ambulance was called, with paramedics arriving approximately 30-40 minutes later.

16You were then taken to the Alfred Hospital under the Mental Health Act for treatment.

17Because of what had occurred you were not interviewed by police.

18You have been in custody since your arrest, a total of 389 days as of today. 

19On 27 November 2023 you pleaded guilty before me to one charge of aggravated burglary – aggravated by a person being present, one charge of contravention of an order intending to cause harm or fear for safety, one charge of criminal damage, and a related summary offence of committing an indictable offence whilst on bail. That charge, committing an indictable offence on bail, arose from the fact you had been released on police bail at the Preston police station on 1 December 2022.

20A plea on your behalf was conducted before me on 27 November 2023 and also today, 20 February 2024 and it now falls to me to sentence you for your conduct.  Your counsel, Mr Maloney, submitted that a combination sentence involving a community corrections order with a justice plan was appropriate and within range. 

21The prosecutor, Mr Roper agreed. 

22In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[5]   Some tend towards leniency, and some point the other way.  No one factor automatically prevails over the other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.   

[5] Section 5(2) of the Sentencing Act 1991.

Your personal circumstances

23Turning to your personal circumstances.  These were outlined in defence submissions and in various reports.  The reports included:

a)from Forensic Psychiatrist, Dr Nicholas Owens, who interviewed you for one hour online on 27 September 2023;

b)from Clinical Neuropsychologist, Dr Mathew Staois, who interviewed you via telehealth on 6 July 2023;

c)from Forensic Psychologist, William Wainwright, who has been working with you for about 3 years;

d)historical client overview reports prepared for previous court appearances.

24You are now 27 years old, and you were 25 at the time of the offending.  Claire is your younger sister and only sibling. 

25Your childhood was marred by instability, abuse, and exposure to illicit substances.

26Your mother consumed alcohol and illicit substances whilst pregnant with you and after you were born. Your father also used illicit substances and was physically abusive towards your mother and you. You report that at around age three he tried to drown you. This abuse led to intervention orders and child protection involvement. You told Dr Owens that your 'whole family are drug dealers'.

27You and your sister were ultimately removed from your parents by authorities, and you remained within the child protection system from age three to 18. You report that you and your sister were separated, that you lived in over150 different placements and that you were physically abused.

28At first you lived with foster families but when you were about 11 you moved to a DHS run residential care unit as you 'needed extra staff to control [you]'. At 13, after a trial of residing with your mother in a residential unit failed due to her alcohol consumption, you were made subject to a guardianship order. After turning 18, you were no longer eligible to receive support from the child protection system and were out on your own. You spent periods of time homeless and living in boarding houses.

29Your father is currently serving a sentence for murder, and you have not been in contact with him since you were about five. You have had little or no contact with your mother since the age of 13.

30You began smoking cigarettes at age 11 and first used alcohol and cannabis at age 12.  This led to very heavy alcohol consumption and illicit substance abuse issues. You told Dr Owens that you often drank all day every day. You began using methamphetamine at age 16.   You told Dr Owens that from age 14 to 18 you often used MDMA, LSD, hallucinogenic mushrooms, and ketamine. You have also often used illicitly acquired prescription drugs, including Xanax. 

31You told Dr Owens that you engaged in drug and alcohol counselling two years ago as the condition of a community corrections order, but have done nothing since.

32Your schooling was disjointed and sporadic as you were asked to leave various schools for reasons including fighting, selling drugs, and being intoxicated. According to Dr Staois –

'[You were] reported to have displayed violent and aggressive behaviour throughout [your] childhood, including in the school environment. [You were] described as being extremely defiant, difficult to engage, and dysregulated. [You] had trouble making friends and were reported to be largely isolated and preferring to stay at home.'

33Between 2012 and 2013 you were enrolled in a specialist school for young people disengaged from mainstream education, but only went sporadically. You completed your Year 10 certificate while you were incarcerated in a Youth Justice Custodial Facility.

34You have trouble writing and spelling.

35You told Dr Owens that you worked for short periods of time at a Vegemite factory and at a café at an RSL which you left in 2022 after falling out with your boss.

36You have started a Certificate III in hospitality which you have almost finished, and you attended the street cooking program at Collingwood TAFE.  While you have been in custody you have completed a food handling and preparation course.

37You told Dr Owens that you have not had any intimate relationships.

38You experience chronic back pain apparently due to you having been assaulted in the past and your pain is exacerbated by your obesity.

39In October 2022 you moved in with Claire but the next month you punched a hole in a wall causing Claire to notify the police and an intervention order was made against you. Presumably this was an interim order before the final order which was served on you in January 2023. 

40You told Dr Owens that when you were released from prison in January 2023, you were homeless. You said you asked police to assist you to retrieve your property from Claire's house but they were 'too busy'. You said you then 'lost [your] shit' and began a binge of using alcohol and methamphetamine. You then accidentally called your sister and were arrested for breaching the intervention order.  You then went to your drug dealer and got methamphetamine and alprazolam, which you used. Following this you fell off a four-storey building in Dandenong, and you cannot recall if this was a suicide attempt. You recall feeling depressed and miserable, and experiencing paranoid thoughts that people were trying to kill you.

41You said that you then went to your sister's house to get your identification, but you do not have a clear memory of what happened. You recall being arrested and then waking up at the Alfred Hospital. Your next memory is waking up at the Melbourne Custody Centre a few days later.

42Turning to the expert opinions and diagnosis.  You told Dr Owen that you began experiencing mental health problems when you were aged 13 or 14 and spent time in the young people's psychiatric unit at the Austin Hospital as well as the Monash Medical Centre and Dandenong Hospital.

43You reported trying to commit suicide twice in custody, both times by sticking something in an electrical power point causing a small fire. You said you did this because you were hearing voices. As your Counsel pointed out Justice Health Records indicate that there were actually three episodes of self-harm in custody. You told Dr Owen that you often felt hopeless.

44You told Dr Owens that prior to being remanded you were in a 'drug-fuelled rage', were feeling depressed and hearing voices. You said for most of the last two – two and a half years you have been hearing a male voice telling you to kill yourself, and at times to hurt others.

45You told Dr Owens that you understood you had been diagnosed with depression, anxiety, and schizophrenia. You also said that you have autistic traits borderline personality disorder and an intellectual disability.

46Dr Owens reviewed your Justice Health records.  He noted that you were assessed by a psychiatrist on 27 April 2023 and that your past diagnoses included intellectual disability, expressive language disorder, adjustment disorder, unspecified mental retardation without impaired behaviour, developmentally disordered speech, mixed conduct disorder, mental and behavioural disorder due to harmful cannabis use, and childhood reactive attachment disorder. The impression of the psychiatrist was of intellectual disability, autism spectrum disorder, substance use disorder, conduct disorder and Cluster B personality framework, but no mental illness evident on the date of assessment.

47Dr Owens considered further assessment was necessary to determine whether you do suffer from autism spectrum disorder or personality disorder.

48Dr Staois opined that '[your] presentation is consistent with a mild intellectual development disorder'.  He considered the combination of experiences in your childhood led to your emotional distress, externalising behaviours, and poor attachment.

49You are currently seeing psychiatric services in custody twice per week and are prescribed psychotropic and antidepressant medication.

Objective Gravity of your offending and moral culpability

50Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  If there was any doubt about the seriousness of your offences the maximum penalties make it clear. 

51Charge 1 – aggravated burglary is subject to a maximum term of
25 years' imprisonment.

52Charge 2 – contravening order intending to cause harm or fear for safety is subject to a maximum term of 5 years' imprisonment.

53Charge 3 – damaging property is subject to a maximum term of 10 years' imprisonment.

54The commit indictable offence whilst on bail charge, which is a summary charge, is the least serious of your offending and has a maximum penalty of only 3 months' imprisonment.

55What you did on 26 January was terrifying.  Your sister, who loved you and who had taken you into her home in October 2022 deserved better.  She and her housemate were entitled to feel safe in their own home, especially since she had an intervention order against you.  You took drugs and then took out your anger and frustration on her, a completely innocent person.   In so doing you possibly destroyed your only hope of having any sort of relationship with her and given you have no contact with your parents this is tragic for you, but also for her.  You did this even though you had only been released from prison 6 days earlier for similar behaviour.  You knew that taking drugs caused you to behave badly and yet you took them anyway. 

56That said, as terrifying as it was, the incident lasted less two minutes, was relatively spontaneous and you did not go there armed with a weapon. In the spectrum of seriousness for the offence of aggravated burglary, this was, as the Prosecution conceded, towards the lower end. 

57Further, I accept that your moral culpability is reduced both by your intellectual disability and your disadvantaged and traumatic upbringing.  These are matters beyond your control and explain your recourse to violence when frustrated and inability to control yourself.  I am not so satisfied in relation to your mental health as your diagnosis is unclear, as is its link, if any, to what occurred on this night, especially given you were heavily intoxicated with drugs and alcohol.  That said, your mental health is a matter I take into account in a general sense.   

58I also take into account the fact you were only 25 at the time of the offending and relatively immature.  The law recognises that young people are more prone to make ill-considered or rash decisions and may have less insight and self-control than older people.  Further, they may not fully appreciate the seriousness of their conduct.   

Impact of your offending

59I am required to take into account the impact of your offending on your victims and their personal circumstances.[6]

[6] Section 5(2)(daa), (da) and (db).

60Your sister provided a victim impact statement which was read aloud by the Prosecutor in Court. She says that she has struggled to sleep since the offending occurred and has avoided going to certain places so that she does not run into you.  At the time of the statement, she was in the process of moving house so that you will not know where she lives and she has changed jobs so that you will not know what she does for work anymore. This has placed her under significant financial strain. She is also in the process of seeing a psychologist to help with her trauma. She said that it has been heartbreaking to lose her brother/best friend, as she is not sure that she will ever be able to forgive you or speak to you again. She says she hopes you get the help you need and becomes the man she knows that you can become.  

61Mr Orchard, you should reflect on what your sister said. In the circumstances it is a very generous attitude towards you. She hopes the best for you, but it is up to you to do what you can to try and repair your relationship with her.

Current Sentencing Practices

62I am obliged to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. 

63The most recent Sentencing Advisory Council Sentencing Snapshot (December 2021) for the offence of aggravated burglary indicates that approximately 91 per cent of people sentenced for the offence over the five years leading up to
30 June 2021 received an immediate term of imprisonment ranging from 23 days to eight years, with three to four years being the most common sentence at 27 per cent.  This wide variation of sentences reflects the vast disparity in seriousness of the offence. 

64Of course, statistics never tell you anything about the details of the case. 

65Of more use are sentences imposed in comparable cases, although they are not binding precedents.  I was not referred to any directly comparable cases by either party, but it would be fair to say that, unfortunately, a fair number of the cases included in the statistics would have involved aggravated burglaries within a domestic setting. 

Plea of Guilty, co-operation and remorse

66You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and indicated your intention to plead guilty at a very early stage, 10 May 2023 in fact.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  You have also spared your sister and housemate from the ordeal of coming to court to give evidence.  Moreover, I accept that you are entitled to an even greater discount because at the time you indicated your intention to plead guilty our court was still beleaguered by a back log of cases caused by the pandemic.  I also accept that your early plea of guilty is an indication of your remorse for what you did on that night.

Your character and risk of reoffending

67For such a young person your criminal history is pretty alarming.  I have counted 12 different court appearances for a range of offences, many of them violent, starting in the Children's Court.  You have received corrections orders and terms of imprisonment or detention before.  You have breached court orders before.  Nothing seems to have deterred you, let alone rehabilitated you.   

68Dr Owens' assessed your risk of further violent offending as being high in the medium term.  He indicated that you would need a high degree of community support in the longer term, and he noted that substance abuse was a relevant but modifiable risk factor for you.  What that means is that out of all the things that have happened in your life, and that cause you to be disadvantaged, the one thing that is within your control is your drug use.  If you can stop using drugs, you have the ability to stop offending or at least to reduce your risk of further offending to a large degree.

69Dr Owens also noted the importance of adequate supported accommodation as part of a comprehensive multi-disciplinary treatment plan for your rehabilitation.

70Similarly, Mr Wainwright noted the importance of you obtaining independent accommodation upon your release from prison and adequate support in the community. 

71You have had NDIS support before and you now have a package which is approved until 31 July 2024. 

72You have completed an assessment for supported independent living with an occupational therapist.  This assessment has been onforwarded to allow the NDIS to make a decision about whether they would approve independent accommodation for you.  It is anticipated that they will make such a decision within about two to three months.

73The NDIS package that you are currently on has not been suspended during your incarceration, as they often are.  This means that you can keep seeing
Mr Wainwright and that there can be movement towards you obtaining independent accommodation. 

74I do not consider you to be without hope.  You are still only young at age 27 and as I said before, it is in within your control to avoid drugs and alcohol.  

The burden of imprisonment

75In determining the appropriate sentence I must consider how a term of imprisonment would be likely to impact you, and how it has impacted you so far.  This is particularly relevant given your intellectual disability. 

76I do take into account the fact that your time in custody has been, and will continue to be, harder for you than a person without your difficulties.

77There have been the attempts at self-harm which I have already outlined. 

78You also told Dr Owens that you have been separated from other prisoners because you do not get along well with others and because of 'guys trying to kill me'.

79Dr Owens reported that when you were assessed by prison psychiatric services, they noted that you had poor coping skills and tended to present with dysfunctional behaviours when needs were not immediately met.  Dr Owens considered that your behaviour in custody will remain concerning in terms of your limited capacity for affect regulation and management of interpersonal conflicts within the prison, and that it was likely that you will continue to have periods of time accommodated in a management unit with limited time out of your cell.

Purposes of Sentencing

80I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes which are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

81Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. 

82For crimes such as yours, general deterrence and denunciation are paramount sentencing considerations.  Your criminal history means that there is also a need to specifically deter you from further offending.   That said, because of your intellectual disability and deprived background there is a need to moderate those principles.  Community protection is an important factor, again because of your history of offending.  There is also a need to promote your rehabilitation which is the best way of protecting the public. 

83I have already set out in full the matters in your favour and against, in the course of these reasons.  There is no need to repeat them.  After weighing these competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a combination sentence, that is prison with a community corrections order.

84I do not consider it is appropriate to release you immediately.  I do not consider that you have served enough time considering the seriousness of the offences and the other sentencing considerations. 

85I have had you assessed for a community corrections order and you have been found unsuitable.  This is largely because of the fact that you do not currently have a stable home environment, and also there is concern about your violent behaviour and the risk to corrections workers.  The fact that you have been assessed as unsuitable does not prevent me from imposing a corrections order and I remain of the view that it is the appropriate disposition for you.  

86All your offences occurred within a period of one to two minutes.  I consider that it is appropriate to impose an aggregate sentence for the indictable offences.

Sentence

87On Charges 1, 2 and 3 I convict and sentence you to a term of imprisonment, an aggregate term of 21 months.

88On the summary charge of commit indictable offence whilst on bail, I convict and sentence you to a term of one month imprisonment, which I will make wholly concurrent with that 21 months.

89I declare that you have already served a total of 389 days pre-sentence detention not including today in respect of that sentence and order that declaration be entered in the records of the court, and the period be deducted administratively.

90What that means is that you are going to have to serve another period of just less than nine months before you will be released from custody.

91On Charges 1, 2 and 3 I am also imposing a community corrections order.  You will have to comply with all the usual requirements of a community corrections order, with the special condition that you comply with all the requirements of the Justice Plan.

92The Justice Plan has four recommendations, so the order will be that you comply with the recommendations of the Justice Plan. 

i.The first one is that you engage with a disability justice coordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in further planning as required.  And that you agree to any treatment and services identified by the disability justice coordinator.

ii.The second is that you participate in a referral to the Forensic Disability Clinical Services Team and participate in the assessment process and any offending behaviour programs, as recommended.

iii.The third is that you be referred to and undergo assessment and treatment with ACSO COATS and follow their recommendations.

iv.And fourth, that you participate in treatment and support programs that may be recommended by ACSO COATS.

93I said there were four conditions, but it depends on how you read it. In any event  you will have to follow all the recommendations in the Justice Plan.  According to the Justice Plan, I should also make the ACSO COATS recommendation a condition of the corrections order, so I will add that as a separate condition.

94The period of the corrections order will be for one year.  Now I am not sure that we are in a position to have you sign that yet, so we may have to - we may be, just a moment.

95I can indicate this.  That if you had not pleaded guilty to these offences, if you had run a trial and been found guilty, I would have sentenced you to a term of four years' imprisonment with a non-parole period of three years.

96OFFENDER:  Excuse me, Your Honour.

97HER HONOUR:  Yes, Mr Orchard.

98OFFENDER:  So does that mean 21 months or 22 months and then with the corrections order?  Or does that - - -

99HER HONOUR:  21 months plus the time you have already spent in custody will come off it, so it is about another nine months in custody before you get released.  When you are released it will be on a corrections order.

100OFFENDER:  (Indistinct words).

101HER HONOUR:  Can I just ask - while we are getting the order prepared - is there anything either counsel wanted to raise with me?

102COUNSEL:  (Indistinct words).

103HER HONOUR:  Yes, I did, 389 days not including today.

104COUNSEL:  I have no issues, Your Honour.

105MR ROPER:  No, there was no further matters, Your Honour.

106HER HONOUR:  We have got a community corrections order.  As I said, it needs to have a reporting condition, the initial reporting, and I do not know where Mr Orchard will live, but what has come up as a default based presumably on his past address is to attend at the Dandenong Community Correctional Centre, that is after his release from prison.

107I suppose if we get him to sign that, if it is changed to something else it can be addressed.  I am not quite sure how we go about it really.

108COUNSEL:  My submission is generally that has to stay, so even if he moves to Geelong, he would still do the initial report to Dandenong, although there is some capacity at times to do that by phone as well.  So at this stage - - -

109HER HONOUR:  All right, so we will leave that.

110COUNSEL:  - - - I don't think we can change that.

111HER HONOUR:  Yes, all right.  I am proposing to have him under the supervision of a community corrections officer as well as a Justice Plan and the ACSO COATS.

112COUNSEL:  I think you have to, Your Honour.

113HER HONOUR:  Yes.

114COUNSEL:  I think the supervision is what gives the corrections officer, the case manager their power to monitor.  So I think it has to have at the very least, in my respectful submission, for supervision, assessment and treatment for drug abuse or dependency as directed including testing and the Justice Plan.

115HER HONOUR:  Let's have a look.  Well we have got participate in treatment and support programs that may be recommended by ACSO COATS which will be the drug and alcohol.

116COUNSEL:  The ACSO COATS is of course the State service for referral to the relevant - - -

117HER HONOUR:  Yes, but it comes up as a - apparently it comes up as something you can select.  So you don't have to just have the general treatment and rehabilitation, you can have that.

118COUNSEL:  Whilst it's not the normal wording, I wouldn't take issue because that clearly then refers to - - -

119HER HONOUR:  It does.

120COUNSEL:  - - - exactly what the disability client services are going to do, which will be it will be a referral to ACSO, ACSO will do an intake assessment, and then they will refer to the relevant AOD counsellor or service in whatever area Mr Orchard lives at the time.

121HER HONOUR:  All right, well I will hand that down and I think it reflects what I intended and counsel can have a look at it.

122COUNSEL:  I take no issue with that.

123MR ROPER:  Neither do I, Your Honour.

124HER HONOUR:  All right, thanks.  Well, Mr Orchard, so you will be asked to sign that order.  I will sign it first.  And Mr Orchard, can I just say to you. It is very important that you abide by this corrections order.  You have had them before, you have breached them before.  If you breach it, the likely consequence is you get charged for breaching it, you come back before me to be resentenced, more prison time, all right.

125COUNSEL: (Indistinct words).

126HER HONOUR:  Yes, certainly.  Thank you counsel for your assistance and I will leave the Bench.  We will adjourn the court.

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