Director of Public Prosecutions v Paul Verlander, Paul
[2013] VCC 486
•18 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02294
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL VERLANDER |
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JUDGE: | Judge Mason | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2013 | |
DATE OF SENTENCE: | 18 April 2013 | |
CASE MAY BE CITED AS: | DPP v Paul Verlander, Paul | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 486 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing – aggravated burglary – recklessly causing injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Hamnett | Office of Public Prosecutions |
| For the Accused | Mr F. Cameron | Tony Hannebery Lawyers |
HIS HONOUR:
1 Mr Verlander, you have pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing injury.
2 Aggravated burglary carries a maximum penalty of 25 years' imprisonment and recklessly causing injury a maximum penalty of five years' imprisonment.
3 You are presently 25 years of age, having been born on 3 June 1987, and you were aged 24 when this offending occurred around 15 months ago.
4 You do have a criminal record, about which I will go into in more detail later.
5 At the time of the offending the victim, Nathan Fanner, lived at an address in Melton. He had been in a relationship with your sister, however they had split. Your sister was very emotionally traumatised by the split and this continued with conversations, texting and Facebook comments between the two of them. Your sister's emotional response developed into physical symptoms and she was not eating, she was vomiting and disengaging with the family. You and your parents became very concerned and urged her to consult a medical practitioner. As a result she was placed on anti-depressant medication.
6 You decided to intervene in what you perceived as destructive conduct and telephoned Fanner. You urged him to desist contacting your sister or receiving her calls so that she could recover. His response was essentially to tell you to mind your own business and if you wanted to persist, then to meet him to sort it out. Your account is that this was in a threatening context. Your response was to say, "All right, I want to see you now" thinking that your presence would be more intimidating. In your record of interview you conceded that in your view he was being disrespectful to you.
7 You believed he was to meet you outside a local AutoBarn store and you went there. You had two friends with you.
8 In the meantime your sister had telephoned your girlfriend and told her that Fanner had friends with him. Your parents were also contacted and all were concerned about possible violence. Both your sister and your parents made their way to AutoBarn in separate cars.
9 Whilst at the store, Fanner was seen to drive past. He had a friend with him in the car. You followed with your two friends in your car and your parents and sister in theirs.
10 At approximately 7 p.m. the victim and his friend arrived at the victim's address. The victim got out of the car with his dog on a leash and walked towards the front door of his house. His friend remained in the car.
11 As the victim approached the front door you yelled out to him. The victim ignored you and went through the front door but he could not close the door immediately as his dog was on the lead. Before he could close the door completely you ran straight into the door, forcing it off its hinges and onto the victim who was knocked onto the floor inside the house. This conduct constitutes Charge 1 of aggravated burglary.
12 While the victim was on the floor you got on top of him and punched him five or six times to the body and hit him five or six times to the face. The victim suffered a fractured right eye socket (an orbital fracture) amongst other injuries as a result of the incident. The conduct constitutes Charge 2 of recklessly causing injury.
13 The arrival of your vehicle, the approach of the victim to his home, your sprint towards the front door and the arrival of the others to the scene was captured on closed circuit television.
14
On 12 January 2012 you attended at the Melton Police Station for an arrest by appointment. You stated that:
(a) you telephoned the victim to request him to cease contact with your sister but he became disrespectful and abusive and agreed to meet you;
(b) you followed the victim to his house;
(c) you struggled with the victim and in that struggle the door broke;
(d) you fell into the house on top of the victim;
(e) you did not intend to go into the house; and
(f) you made no admissions in relation to punching the victim.
15 You pleaded guilty ultimately at the committal hearing on 29 November 2012 after negotiations on wider charges had resolved to an agreed plea indictment.
16 I now turn to your personal circumstances.
17 As noted earlier, you are now aged 25 and you do have a criminal record. I note however that only two sentences were recorded as convictions and they were for road traffic offences. Whilst you have committed several offences for criminal damage and other offences including resist police and thefts, you did not receive convictions and were placed on undertakings to be of good behaviour which you have apparently honoured.
18 You successfully completed a Community-based Order in 2006/7, again without conviction. I infer from the penalties imposed that the offending in the past was therefore likely to have been in the very low range.
19
You completed school until Year 11 and went to TAFE and obtained a Diploma in Sports Development and later studied in Exercise Science at Victoria University. You then worked full time as a personal trainer as well as working in security as a crowd controller in the evenings. You currently work as a personal trainer as well as casual labourer.
20 You have been in a steady personal relationship for approximately five years. Your partner Ms Ayoubi gave evidence and confirmed that you are not by nature violent, but on the contrary calm and controlled even in the face of insults and threats from intoxicated patrons. Ms Ayoubi also confirmed the very fragile, emotional and physical state of your sister and that she had been the recipient of emotional bullying.
21 Your father also gave evidence of your sister's reaction to her split and the concerns the family were having.
22 Evidence was also received from Mr Ozenoglu who has worked with you in crowd control security. He also confirmed that over the five years he has known you and the three that he has worked with you, you have never shown yourself to be violent, threatening or aggressive, always displaying a tendency towards safety to others and acting in a well-mannered way. You demonstrate calm and patience when confronted with aggressive circumstances.
23 The offences you have committed are serious. Home invasion is a terrifying experience. The emotional effects can be longstanding. A crime of aggravated burglary in these circumstances undermines the sense of security people are entitled to feel in their own homes.
24 The Court of Appeal has stated that the incidence of home invasions must be discouraged by the courts and it would be only in a rare case that such conduct would not result in a sentence of imprisonment to be immediately served and for a significant period. Principles of general deterrence and denunciation feature prominently in the sentencing discretion. The maximum penalty of 25 years' imprisonment on the charge of aggravated burglary is an indication of how seriously Parliament views this offence.
25 Similarly, assaults causing injury can have an emotional effect well beyond their physical consequences. In my view what began as an attempt to caution the ultimate victim in the hope of protecting your sister turned to outrage, personal outrage on your part because he had shown you no respect. It was your pride, not the motive to right some wrong, that in the end inflamed your violent response. It was the act of a thug.
26 In mitigation I accept principally that your conduct in breaking down the door and entering the house was a very spontaneous act and had not been the subject of any anticipation or planning. In my view it was an action very much bound up with your primary intention to assault before the victim entered his home. In light of the immediacy and the level of your subsequent assault upon the victim when the door went down, it is clear what your intention had been.
27 I accept therefore that the separate offence of aggravated burglary, in the particular circumstances of this case, being so much bound with the immediacy of the pursuit to effect the assault, does lie at the low end of the scale of such offending.
28 I also take into account the matters urged upon me by your counsel Mr Cameron, including the following:
- your pleas of guilty and that they were entered at the earliest practical opportunity;
- your good work record and educational achievements which I accept suggest that you have good prospects of rehabilitation;
- your good and controlled conduct otherwise in an industry which involves aspects of confrontation and violence;
- despite some not insignificant blemishes, your past record which does not involve offences of personal violence;
- you express some remorse and empathy for the victim; and
- you have the continuing support of your family and your partner.
29 I have considered carefully the authorities and statistical summary provided by Mr Cameron. These aspects, of course, have to be considered in the context of the particular circumstances of this case.
30 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and re-integrated into society.
31 Whilst your counsel submitted that a sentence that does not involve your immediate confinement to prison is open in the circumstances, he realistically acknowledged that a sentence involving a short period of detention tailored with an appropriate Community Correction Order would not be inappropriate. The prosecution accepted that the latter combination would not be outside permissible sentencing range and that the circumstances of this case were not an appropriate instance for challenging current sentencing practices.
32 In my view such disposition is appropriate in these circumstances. In arriving at this conclusion I am mindful of past and recent Court of Appeal authority reflecting the very serious nature of the offence of aggravated burglary in particular[1], and the need for sentences reflecting that seriousness. The authorities also reflect community concern over offences of confrontational home invasion and the responses by the Victorian Parliament reflecting that concern.
[1] Including R v Siggins [2002] VSCA 97; R v Hajje [2009] VSCA 160; R v Hogarth [2012] VSCA 302.
33 In light of all these matters I have also requested an assessment and report of your suitability for a Community Corrections Order as an appropriate mixed sentencing option. I have received that report and it is positive as to your suitability. In light of your circumstances it is recommended that you participate in programs directed towards dealing with your offending behaviour.
34 Mr Verlander, could you now please stand.
35 On Charge 1 of aggravated burglary you are convicted and sentenced to three months' imprisonment. The sentence starts today.
36 On Charge 2 of recklessly causing injury you are convicted and ordered to serve a Community Correction Order for a period of 18 months.
37 The Community Correction Order commences immediately upon your release from prison, that is on Wednesday, 17 July 2013, and ends on 16 January 2015.
38 The Corrections Centre you will attend is the Melton Community Corrections Service at 83-85 Unitt Street, Melton, and you must attend there within two clear working days after the commencement of the order, that is by 4 p.m. on Friday, 19 July 2013.
39 All the mandatory terms of the Community Correction Order apply and the additional conditions I impose are that:
- you be under the supervision of a Community Corrections Officer;
- you perform 100 hours of unpaid community work; and
- you undergo programs to reduce offending as directed.
40 I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you. However it is appropriate that I briefly summarise them here. The mandatory terms are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must report to and receive visits from a Community Corrections Officer;
- you must report to the Community Corrections Centre, that is the Melton centre, within two clear working days of the order starting, and as I have already indicated that is on Friday, 19 July;
- you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;
- you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and
- you must obey all lawful instructions from and directions of Community Corrections Officers. Such directions may be given either orally or in writing.
41 Do you understand and agree to those conditions, Mr Verlander?
42 ACCUSED: I do, Your Honour.
43 HIS HONOUR: Now if you are ill or if there are exceptional circumstances the order may be suspended for a period of time and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is the centre at Melton, and I recommend that you obtain legal advice if any of those things happen.
44 However I must warn you quite clearly that if you breach any condition of this order you will be brought back to court, and that will be before me. One of the options open to me is to cancel the Community Corrections Order and re-sentence you on the original charge and I may also deal with you for any breach by sending you to prison for up to three months. So do you understand the consequences of breaching the Community Corrections Order?
45 ACCUSED: I do, Your Honour.
46
HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is
18 months' imprisonment with a minimum period of 9 months to be served before eligibility for parole.
47 At the plea hearing the Crown sought an order which was not opposed for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was by consent and the granting of the order is in the public interest.
48 I must inform you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Verlander?
49 ACCUSED: I do, Your Honour.
50 HIS HONOUR: Thank you, you may be seated and in a moment I will ask my associate to pass the form for the Corrections Order to you for signature. I just ask the parties to remain here while copies of that order are made. You will be provided with a copy of that order by your counsel in a moment, Mr Verlander - I appreciate that a lot of the dates and times in that might have just gone over your head in the anxiety of these moments. But you will have the written conditions all set out for you to understand, all right.
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