Director of Public Prosecutions v Payne
[2020] VCC 1036
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01213
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY JOHN PAYNE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2020 | |
DATE OF SENTENCE: | 17 July 2020 | |
CASE MAY BE CITED AS: | DPP v Payne | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1036 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of burglary – three charges of intentionally damaging property – one summary charge of trespass – context of family violence – offences committed following the breakdown of a relationship – evidence of Major Depressive Disorder warranting application of Verdins principles 5 and 6 – early pleas of guilty
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Boulton v The Queen (2014) 46 VR 308; R v Verdins & Ors (2007) 16 VR 269; The Queen v Barbaro and Zirilli [2012] VSCA 285
Sentence: Total effective sentence 30 months’ imprisonment with a non-parole period of 15 months – s6AAA: 4 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Solicitor for Public Prosecutions |
| For the Accused | Mr J Moore | Victoria Legal Aid |
HER HONOUR:
1 Anthony Payne, you have pleaded guilty to two charges of burglary and three charges of intentionally damaging property. Each of these five offences carries a maximum penalty of 10 years’ imprisonment. In addition, you have consented to a summary charge of trespass being transferred to the County Court, and have pleaded guilty to that charge, which carries a maximum penalty of six months’ imprisonment.
2 The circumstances of your offending are detailed in the Amended Summary of Prosecution Opening Upon Plea dated 25 June 2020 (Exhibit “A”). The background to your offending is that, in January 2017, you met your female victim, who had two school aged children. Four months later, in May 2017, you commenced a de facto relationship with your victim when you moved into the home where she lived with her two children. This relationship deteriorated, and some eight months later the victim ended it. You moved out of the victim’s home in January 2018.
3 In approximately March 2018, your victim and her two children moved to Mornington to live in a home which she had purchased following a family law settlement with her former husband. All five charges on the indictment relate to offending by you at that property.
4 Charge 1 (burglary) and Charge 2 (intentionally damaging property), were committed by you on 23 April 2018. Your victim and her children left home at 7.45am to attend work and school respectively. At 3.45pm, your victim’s 14 year old daughter returned home from school to find the front door wide open and that their home had been burgled. Nothing had been stolen but, while the victim and her children were not at home, you had come to the property and forced entry into it by smashing a rear window. You used a knife to slash three seat cushions and two arm rests on a lounge suite, causing long, gaping tears in the fabric so that the inner lining or stuffing was exposed.[1] You also used a knife to slash the fabric of the bedhead in your victim’s bedroom, leaving a horizontal slash of more than half the width of the bedhead, exposing the inner lining or stuffing.[2] In addition, you spilt yellow paint throughout the house, causing damage to the new carpet and also to the walls.[3] Before leaving the property, you also switched off the hot water. The cost of the damage to the property was $4,500. This was ultimately paid by your victim’s insurer, however, she personally incurred a $700 excess payment.
[1]Photographs 25, 26 and 30 – 37 of Exhibit “C”
[2]Photographs 18, 22 and 23 of Exhibit “C”
[3]Photographs 38 – 40 of Exhibit “C” and Photographs 65 – 69 of Exhibit “D”
5 A later analysis by police of your mobile phone and call charge records showed that you had left your address at Bangholme at 6.10am. Rather than driving north to your place of work at Yering, you had first driven south and had been present in Mornington at 7.52am and later drove north and arrived in Yering at 10.10am.
6 Approximately five weeks after committing Charges 1 and 2, you again attended your victim’s property. This was at approximately 8.00am on 30 May 2018. Although your victim and her son had left home at the usual time of 7.45am, your victim’s 14 year old daughter was unwell and remained at home watching television. She heard a car drive into the driveway. She then observed a male come through the side gate and go around to the rear of the property where he was looking through the windows into the sunroom of the home. You were that male. Apparently, when you observed that the television was on, you realised that someone was at home, so you then left the property. A later analysis by police of your mobile phone showed that you had been at a location near your victim’s address from 6.53am until 7.38am. The facts to which I have just referred comprise the summary charge of trespass.
7 Charge 3 (burglary) and Charge 4 (intentionally damaging property) were committed by you the day after your offence of trespass on 30 May 2018. On 31 May 2018, the victim and her children left home at 7.45am. Your victim’s 14 year old daughter returned home from school to find that, yet again, the house had been burgled. This time, you had smashed a lounge room window in order to gain access to the inside of the house. You used a sharp instrument to further slash the fabric of the lounge which you had previously damaged. You added another substantial cut to the fabric of a seat cushion and arm rest and large horizontal cuts to the four cushions which formed the backrest portion of the lounge. This left none of the major structural cushions of that lounge suite undamaged.[4] In addition, you cut out a large triangular portion of the carpet in the room where that lounge suite was located.[5]
[4]Photographs 20 – 25 of “Exhibit D” and “Comparison Photos” (Exhibit “E”)
[5]Photographs 18 and 19 of Exhibit “D”
8 You also made very large slashes to the fabric of every seat cushion of a second lounge suite in the house,[6] as well as making slash marks in a rug located on the floor of the room where that second lounge suite was located.[7]
[6]Photographs 35, 36 and 39 – 42 of Exhibit “D”
[7]Photographs 43 – 45 of Exhibit “D”
9 Further, in your victim’s bedroom, you used a sharp implement to create a very large slash in a cross-like configuration in the fabric of a quilt on her bed[8] and to cut some of her clothing. Also, you cut out a large triangular piece of carpet from the floor of her bedroom[9] and left large scratches in a cross-like configuration on the front of a wooden chest of drawers in her bedroom.[10]
[8]Photographs 70, 74 and 75 of Exhibit “D”
[9]Photographs 79 and 80 of Exhibit “D”
[10]Photographs 76 and 77 of Exhibit “D”
10 In the meals area of the home, you made very disfiguring scratches to the top of a polished timber dining table[11] and also scratched a buffet. Finally, you cut the cord of every piece of electrical equipment in the house. This included the refrigerator, microwave, washing machine, chargers, the television set, entertainment systems and an electric kettle. Exhibit “D” comprises photographs of the extensive damage to electrical equipment in many rooms of the house and also the garage. Even a heating unit in the main living area was rendered inoperable by cutting its cord, as was a clothes dryer, second refrigerator and electric lawnmower in the garage.[12] The cost of the damage caused by you on 31 May 2018 was $9,000. This was paid by your victim’s insurer, but she had to bear a second excess payment of $700.
[11]Photographs 59 and 60 of Exhibit “D”
[12]Photographs 28 – 32, 46 – 58, 61 – 63, 81 – 95 and 87 – 96 of Exhibit “D”
11 A later analysis by police of your mobile phone showed that you had left your address in Bangholme at 6.30am and had driven south, where records showed that your phone had been present in Mornington at 7.21am. You later drove north from Mornington, beyond your home in Bangholme, and arrived at your work at Yering at 9.02am.
12 Charge 5, intentionally damaging property, was committed by you some two months after your offending on Charges 3 and 4. At approximately 10.45pm on 24 July 2018, your victim was asleep in her home when she was awoken by a bang and then a second bang. You threw several rocks at the roller door and the house. One of the rocks hit the fascia board attached to the house and caused a dent.
13 A later analysis by police of your mobile phone showed that you had left the Lynbrook Hotel at 10.11pm on 24 July 2018. Rather than driving straight home to Bangholme, you had driven south to your victim’s address at Mornington and then north again to your home, where you arrived at 11.56pm.
14 Your victim reported the burglary and damage which occurred on 23 April 2018 to police on that day and disclosed her suspicions that you were the offender.[13] Police attended and took photographs of the damage. She also reported the subsequent burglary and damage which occurred on 31 May 2018 to police on that day.[14] Again, police attended and took photographs. Your victim made a very detailed statement to police on 9 August 2018, in which she expressed her belief that you were responsible for the offending at her home. A Family Violence Intervention Order naming your victim and her children as protected persons was made on 24 August 2018. Somewhat surprisingly, you were not arrested until 7 December 2018. When interviewed by police on that day, you denied the offending. You were not charged at that time. However, while being driven home by police you made some admissions. Again, somewhat surprisingly, you were not arrested and charged, but apparently simply invited by police to come and discuss the admissions that you had made. This ultimately took place a month later, on 8 January 2019, when you voluntarily attended Carrum Downs Police Station and participated in a second Record of Interview.[15]
[13]Statement of Leading Senior Constable Walter, Depositions p. 31
[14]Statement of Leading Senior Constable Chamings, Depositions p. 35
[15]The second Record of Interview on its face records that it was made on 8 December 2018, but it is agreed by the parties that this is an error and it, in fact, took place on 8 January 2019.
15 When interviewed on 8 January 2019, you made various admissions and comments. Essentially, you stated that you were in pain because the relationship had ended and you needed your victim to feel the pain of what you were going through. You described your actions as “vandalism”, and stated that you did not go there to punish or commit the crimes out of anger or jealously, but explained that you “couldn’t let her go”. You told police that you had told others that you “wouldn’t let the victim stop loving you”, and that the victim had turned you into a horrible person. You thought that damaging her property would “at least be an annoyance to her.” You stated that the victim’s new partner should thank you, because “she wouldn’t fuck him over the way” the victim “fucked (you) over and she will think twice before doing something like that again”.[16]
[16]Q&A 110, Record of Interview 8 January 2019
16 You are presently aged 54 years, having been born on 23 February 1966. You come before the court with one prior court appearance. This was on 21 December 2010, at Shepparton Magistrates’ Court for offences of recklessly causing injury and criminal damage. The disposition of the court was a without conviction adjourned undertaking to be of good behaviour for a period of 12 months, with a condition that you pay $3,000 to a charity, as well as amounts of compensation of $660 on the injury charge, and $2,633.64 on the criminal damage charge.[17]
[17]Victoria Police Criminal History Report
17 Your counsel stated that this earlier offending had involved an altercation between you and a man whom you had understood to have assaulted a female friend of yours. That female friend, Ms Hind, subsequently became your partner for some five years. Apparently, you had become involved in a fight with the man, during which you assaulted him and caused damage to his car.
18 In a plea of your behalf, Mr Moore submitted that, paying heed to the statements of the Court of Appeal in Boulton v The Queen,[18] a Community Correction Order could serve the relevant sentencing principles, including general deterrence and just punishment. In the event that the court did not consider that to be an appropriate disposition, then Mr Moore urged a combination sentence by way of a term of imprisonment of less than 12 months, together with a Community Correction Order.
[18][2014] 46 VR 308
19 Mr Moore relied upon a psychological assessment of you contained in a report by Ms Carla Lechner, dated 20 May 2020.[19] Ms Lechner diagnosed you as suffering a Major Depressive Disorder and noted a recent very serious suicide attempt by you. She stated that it was important that you should receive treatment for depression, as well as to assist you in better understanding your role in relationships, your emotional dependency, and apparent reluctance or fear of acknowledging your anger over your victim having allegedly treated you poorly. Mr Moore submitted that the treatment recommended by Ms Lechner could be achieved by a Community Correction Order, which would be in the interest of your rehabilitation and also in the interest of the community.
[19]Exhibit “1”
20 Ms Lechner’s report stated:
“Mr Payne currently presents with symptoms of Major Depressive Disorder (DSM-V) that have developed since the break-up of his relationship with the victim in this matter in January 2018. I note that he recently made a very serious suicide attempt and that he remains at risk of another attempt on his life.”
21 She went on to state:
“He has recently recommenced antidepressant medication, having previously ceased taking it in the belief that he would soon be dead (he also stockpiled some of his supply to use in his suicide attempt). He has engaged with two different psychologists for therapeutic support. He stated that he did not ‘connect’ with the first therapist but quite liked the second therapist. He ceased attending again in the belief that there was ‘no point’ given his plans to die. I have urged Mr Payne to reconnect with therapy as the combination of pharmacotherapy and psychological support is the recommended treatment for depression.”
22 In the light of Ms Lechner’s comments, I asked Mr Moore what specific attempts you had made to obtain assistance for your emotional state alleged to have arisen from the end of the relationship with your victim. Mr Moore stated that he did not have those details. When I asked whether he wished to obtain instructions, he stated “I don’t propose to take instructions”. He stated that he could not tell the court whom you had seen, when or for how long. When I asked whether he did not intend to assist the court with that information, Mr Moore then requested an opportunity to obtain instructions. The matter was stood down to enable him to do so.
23 When the hearing resumed, Mr Moore told the court that, after the end of the relationship with your victim at the beginning of 2018, you had seen your general practitioner, Dr Jagadeesan, who had prescribed antidepressant medication. However, you took it for only two weeks as you did not like some side-effect. Some 12 months later, in January 2019, your general practitioner prescribed a different antidepressant, Escitalopram, 20 milligrams per day, and you were apparently referred to a psychologist, Fiona Mawson, for counselling. You ceased seeing her after eight sessions as you perceived the treatment as unhelpful. In or about January 2020, you were apparently referred to another person whom Mr Moore “surmised” to be a psychologist, but you could not recall the name. After three sessions you ceased seeing such person in March 2020. By then, you had also ceased taking any anti-depressant medication. Mr Moore stated that in late-April, just a few days prior to 1 May 2020 when your matter was listed for a plea hearing, you took an overdose of antidepressant medication and attempted asphyxiation, which resulted in you being hospitalised for four days.
24 The plea hearing date of 1 May 2020 was vacated due to your suicide attempt. Prior to that, your plea hearing had been listed on 23 October 2019. Your solicitor, Rebecca Glew, had sent an email to the court on 21 October 2019 stating:
“On Friday evening, I received a psychological report which made reference to cognitive testing and Mr Payne suffering a brain injury. I have received instructions from Mr Payne and will be seeking to adjourn the matter to obtain a neuropsychological report.”
25 At the plea hearing before me, no psychological report dated October 2019 was tendered. Nor was any neuropsychological report tendered. Mr Moore made it plain that you did not rely on any neuropsychological report or brain injury by way of mitigation.[20] An offender has no obligation to tender reports or other material during a plea in mitigation. However, given that your counsel submitted that “since (your) recent suicide attempt…mental health considerations are now an important matter in mitigation in this case”,[21] the Court might have expected more assistance than simply one forensic psychologist’s report obtained shortly before the plea hearing. No report from any treating doctor or psychologist was tendered or even a discharge summary from the hospital where you were apparently an in-patient following your suicide attempt. Whilst it is plainly inappropriate to speculate about the contents of any reports not tendered, my impression from the manner in which the plea was conducted was that the Court was not being assisted with a full picture of your psychological and emotional history and status.
[20]Further outline of submissions and reply submissions dated 24 June 2020 (marked for identification as “MFI-2”), paragraph 8
[21]Ibid, paragraph 9
26 Prior to remanding you in custody at the conclusion of the plea hearing, I asked your counsel to provide all details of your current medication to the court. Mr Moore was unable to do so and you personally were not able to tell the court the names or dosages of multiple different medications. I indicated that it was important that your general practitioner be contacted so that these could be obtained. Yet again, the matter was stood down. Upon resuming, Mr Moore provided names and dosages of some eight medications. When I enquired as to whether that information had come from you or your treating general practitioner and it was up to date, Mr Moore told the Court that it had come from your doctor and was contained in a recent report. He stated “it’s in material that wasn’t mitigatory material and that’s why it’s not in the material handed to the court”. In the circumstances, I infer that such material from your treating doctor would not have assisted your plea in mitigation.
27 On the basis of your self-reported symptoms and psychological history to Ms Carla Lechner on 19 May 2020, and her diagnosis of a Major Depressive Disorder, Ms Baxter for the prosecution conceded that principles 5 and 6 in R v Verdins[22] have application in your case, that is, the prosecution accepted that a term of imprisonment may weigh more heavily upon you than it would on a person in normal health, and that there is a serious risk that imprisonment will have a significantly adverse impact upon your mental health. In the circumstances, I have taken these mitigatory factors into account in determining the sentence which I intend to impose.
[22](2007) 16 VR 269; [2007] VSCA 102
28 Mr Moore submitted on your behalf that your early pleas of guilty had not only utilitarian value, but the court should also find that you had “some remorse,”[23] although he did not submit that your remorse “is absolute”.[24]
[23]Defence Submissions, “MFI-2”, paragraph 2
[24]Ibid, paragraph 5
29 I consider that you should be given the full utilitarian weight of your early pleas of guilty, in that you have facilitated the course of justice, saved the time and cost of a trial and spared your victim the ordeal of having to give evidence. However, I have very significant reservations about your level of remorse. Remorse is a complex concept which has been defined in many different ways over the years. I am mindful that a court should be loath to find that there is no remorse at all. Your counsel placed reliance upon Ms Lechner’s view that you express shame and regret and “acknowledge (your) role in the offences, making no attempt to shirk responsibility.”[25] The Court of Appeal has made it clear that “[i]n many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.”[26] Also, “sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility. … ‘the conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists.’[27] In relation to the latter, I note that Ms Lechner appears not to have read either your first or second Record of Interview. Neither of those give me any strong impression of your remorse.
[25]Exhibit “1”, p3
[26]Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288 at [38]
[27]Ibid at [28], including reference to Phillips v The Queen [2012] VSCA 140 at [69]
30 You denied all offending when first interviewed by police on 7 December 2018. In your second record of interview, you acknowledged that you had told police “I don’t know why you call them burgs, they were an act of vandalism … coz I didn’t stay there, steal nothing. I didn’t go there to punish”,[28] you described having cut the cords of every electrical appliance in the house as “an annoyance to her”.[29] You repeatedly denied that you had committed the offences because you were angry. As far as Charge 5, throwing rocks at your victim’s garage is concerned, you again denied that you had done that because you were angry, and stated that you were just so “angry at myself for ever letting this happen to me”.[30] In my view, you minimise your offending and deny what appears to be your uncontrollable anger which was behind it.
[28]Q&A 54
[29]Q&A 96 and 100
[30]Q&A 68
31 You do not volunteer any insight into the psychological trauma that you have inflicted upon your victim. Rather, you present as self-pitying because you are distressed by the end of the relationship, and tell police that you hate the fact that your victim has “changed (you) into this”.[31] You state “She’s turned me into a horrible person you know, and I hate that, I hate the fact that she’s turned me into something”.[32] Not only is your second record of interview “not fully consistent with remorse”, as submitted by your counsel in the initial defence submissions filed with the court,[33] but it manifests an attitude of making your victim responsible for the way that you behaved.
[31]Q&A 75 and 76
[32]Q&A 92
[33]Paragraph 38 of “MFI-1”
32 In your first record of interview a month earlier, you told police that since the end of the relationship your life had “just gone down the gurgler”,[34] and stated that it had just been “shit” since the relationship ended and that you had tried to commit suicide a while ago, and stated “I know I need to get professional help”.[35]
[34]Q&A 713
[35]Q&A 720
33 Although you claim through your counsel that you did seek some professional help after the end of the relationship, you apparently did not comply with medication, and nor did you engage in treatment to effectively deal with your mood. Indeed, some two years after committing the offending on Charges 1 and 2, and just prior to your attempted suicide in late April 2020, you breached the Family Violence Intervention Order which had been made on 24 August 2018 by posting a package to your victim containing 200 images, including photographs of your victim taken from her Facebook page, and photographs of messages which had been sent between you and her. The package contained no sender details, but included a note stating that you were giving back the victim her life by taking your own.
34 You were charged with breaching the Family Violence Intervention Order, and this is yet to be dealt with in the Magistrates’ Court. You counsel stated that the informant had recommended a Diversion Order. Plainly, it is not my role to sentence you for that offending, but it demonstrates that you have not rehabilitated yourself in any meaningful way since you committed the offences for which I must sentence you. Indeed, it is plain, from what you told Ms Lechner in May this year, that you have not “moved on” psychologically. You report that you feel devastated by the end of the relationship, and still maintain that your actions were driven by hurt and not anger.
35 The element of self-pity which is evident in each of your records of interview was again manifested two and a half years after the end of the relationship, when you told Ms Lechner that your victim “destroyed me, she broke my soul, she made me feel like nothing … I felt worthless, I imploded on myself … she wiped her bum with me and flushed me down the toilet”.[36] You reiterated that you did what you had done “out of pain” and stated “she made me feel like a piece of shit financially, so I wanted her to hurt financially … I only saw it as material, I didn’t attack her or the kids”. You went on to state that you had “no idea” of the psychological impact, and acknowledged that you cannot “let go of the hurt”.
[36]Exhibit “1”, page 3
36 Ms Lechner considered that you used the term “hurt”, but it was really a metaphor for anger. She stated:
“I suspect that he harboured a lot of resentment and anger towards the victim … He still finds it hard to own feelings of anger and to fully understand the psychological trauma caused by his actions”.[37]
[37]Exhibit “1”, pp. 1-2
37 Ms Lechner went on to state “He was not able to take any perspective other than his own”. She also stated that you had demonstrated high emotional dependency needs, and indicated “I hate being alone … I just need my partner”. She considered that you internalised your emotional distress and tended to deny or minimise the extent of your feelings, and were particularly inclined to deny feelings of anger. She opined that you are “stuck in an egocentric perspective that includes (your) interpretation of the offending”.[38]
[38]Exhibit “1”, p. 7 at [3]
38 Given the matters to which I have referred in your records of interview and in Ms Lechner’s report, I do not agree that you “(make) no attempt to shirk responsibility”, even though you have pleaded guilty to the offences.
39 Ms Lechner’s report confirms my impression that there are significant causes of your offending that relate to personality traits by way of high emotional dependency resulting in an obsessive and possessive relationship with your victim. In your records of interview and statements to Ms Lechner, you manifest a significant sense of entitlement to that relationship, very concerning anger that your victim brought it to an end and an enduring inability to put the relationship behind you, even after you entered into a new relationship with another woman in late-2018. You have demonstrated a lack of emotional maturity and insight, not only into your own psychological state, particularly your feelings of anger and intense emotional dependency, but also regarding the impact of your behaviour on others.
40 I accept that you are suffering from depression, which I find to be reactive to both the end of your relationship with your victim and, also, to the very serious legal predicament in which you find yourself, namely facing a term of imprisonment. On all the material before me, your depression, alone, in my view, does not explain your uncontrolled, vengeful actions in repeatedly offending against your victim and desecrating the new home which she had worked hard to make comfortable, attractive and secure for her children. As I have stated, I consider the personality traits to which I have referred to be significant causative factors.
41 Your counsel submitted that there had been delay between the date of offending and the date of sentencing, which the Court should take into account as a mitigatory factor. Firstly, it was submitted that you have suffered a long period of anxiety and uncertainty of not knowing the outcome of your offending. Secondly, it was submitted you should be given credit for your good conduct, lack of further offending and rehabilitation during the period of delay.
42 I have already indicated that, in the absence of any explanation, I consider that the police investigation of your crimes should have proceeded more expeditiously. However, once you were charged in January 2019, I do not consider that there was undue delay between then and 19 June 2019, when the matter resolved into pleas of guilty at the committal case conference. As I have previously mentioned, your plea hearing initially was listed in the County Court on 23 October 2019, but was adjourned at your request. It was then listed to be heard on 1 May 2020, but adjourned, again, shortly prior to that date due to your suicide attempt. Thus, much of the delay has been occasioned by adjournment applications on your behalf. I make some allowance for the protracted anxiety attached to not knowing your fate as a result of your offending. This is referred to in Ms Lechner’s report and also in a reference from your employer[39] and a reference from Ms Bruce, with whom you were in a relationship from late 2018 until March 2020.[40] However, I do not believe it can be said that you have utilised the delay to rehabilitate yourself when significant underlying factors which contributed to the offending remain unaddressed at the present time, particularly your vengeful anger, lack of insight and inability to move on from the relationship with your victim, which ended two-and-a-half years ago. This is borne out by your statements to Ms Lechner and also your conduct in breaching the Family Violence Intervention Order in late April this year.
[39]Exhibit “2”
[40]Exhibit “3”
43 Mr Moore submitted that this offending should be regarded as “an aberration”. He referred to your limited criminal history and the fact that references from two of your former partners, Ms Bruce and Ms Hind,[41] state that, whilst they were in a relationship with you, you were thoughtful, caring and respectful, and you did not exhibit anger towards them. Mr Moore noted that one of your former partners, and your sister, had come along to the plea hearing to support you. He submitted that this support, along with a good work history and a complimentary reference from your employer praising your work ethic and attendance, were factors in favour of your rehabilitative prospects. I accept that having employment and emotional support can be of great assistance to an offender in the rehabilitation process, although I do note that you were employed and apparently on good terms with your sister at the time of offending and that, from November 2018 to March 2020, you were in a relationship with Ms Bruce. Moreover, the concerning features of your personality, which were highlighted by Ms Lechner and to which I have previously referred, are matters which have not yet begun to be addressed. The extent to which these features are entrenched and amendable to “long-term therapy” advocated by Ms Lechner is unknown. I have reservations about Ms Lechner’s comment that you appear to be more of a risk to yourself than to any other person or your victim.[42] From the information conveyed to me by Mr Moore from the Bar table, it seems that your general practitioner tried to help you by prescribing anti-depressant medication and referring you to counselling, but you did not engage in a sustained way with such treatment to help yourself.
[41]Exhibit “4”
[42]Exhibit “1”, pp. 2 and 7
44 Mr Payne, you should be in no doubt as to the gravity of your offending. The fact that the offences of burglary and intentionally damaging property carry a maximum penalty of 10 years’ imprisonment is an indicator of the seriousness with which Parliament regards such offences. On your behalf, it was put by Mr Moore that “[t]here is no evidence that the offending was planned in any meaningful way”.[43] I do not accept that that is so for the following reasons:
a)The agreement between the prosecution and defence reflected in the Amended Summary of Prosecution Opening upon Plea, dated 25 June 2020, is such that I am unable to determine one way or another whether the knife or cutting implement that was used to damage your victim’s property on either 23 April 2018 or 31 May 2018 had been brought by you to the property. However, the fact that you repeated the same slashing style of property damage by using a cutting implement on the second date appears to me to be a relevant indicator of your distinctive modus operandi.
b)In your victim’s statement to police, she indicated that the yellow paint which had been spilled over carpet and walls throughout the property on 23 April 2018 was not from her home. Your counsel conceded that this left open the inference that you had brought it with you to your victim’s property for that purpose. I am satisfied beyond reasonable doubt that that is the only reasonable inference open in the circumstances.
c)The analysis of the data from your mobile phone and records satisfies me beyond reasonable doubt that you deliberately went out of your way to go to the victim’s property, which was in the opposite direction to your workplace (as far as Charges 1 & 2 and 3 & 4 are concerned) and made a substantial detour south from the Lynbrook Hotel to your victim’s home on 24 July 2018 (Charge 5) before heading north again to your home in Bangholme.
d)I am satisfied beyond reasonable doubt that you attended your victim’s home on Charges 1 to 4 at a time when you knew that usually she would be at work and her children would be at school. When you committed the summary offence of trespass on 30 May 2018, you were clearly surprised to find that someone was at home, and so retreated. However, the fact that you returned the very next day to commit the offending on Charges 3 and 4 demonstrates how pre-occupied you were by your wanting to harm your victim’s property.
[43]Paragraph 25c. of the Defence Submissions, dated 27 April 2020, “MFI-1”
45 There was nothing spontaneous about your offending. It was persistent and repetitive in its nature. This increases your moral culpability, because you knew it was unlawful, yet failed to restrain yourself, and thereby increased the fear and erosion of security of your victim and her children.
46 The fact that the burglaries and intentional damage of property have been committed in the home of your victim strikes at the fundamental entitlement of your victim and her children to feel comfortable and safe in their own home. It is well acknowledged that long-term adverse psychological consequences can flow from the type of crimes you have committed, even though there has been no physical injury inflicted upon your victim. Your offending was not a random, impersonal style of burglary where items were stolen by a stranger for their material value, which, of course, can be serious. It was a deliberately-targeted form of menace to your victim, which involved childishly and pointlessly desecrating the amenity of her home in a deeply disturbing way.
47 The impact of your crimes upon your victim are poignantly described in her Victim Impact Statement (Exhibit “B”).
48 She described how your conduct has made her and her children feel scared, insecure and unsafe in their own home and how their levels of anxiety severely increased after the second burglary and even more extensive damage inflicted by you. She described her distress over the damage to items of furniture which had sentimental value because they had belonged to her father, and how she could not escape the reminders of what you had done as every room was affected.
49 Moreover, she suffered the indignity of being interviewed and humiliated by the many very personal questions asked by the insurance assessor as standard procedure when fraud was suspected, given that she had made claims twice within five weeks.
50 Your victim described the impact upon her 14-year-old daughter twice coming home to find the house had been broken into and damaged and her consequent need to seek counselling at school. She described her 9-year-old son also requiring counselling and being so traumatised that he would not sleep in his own bed and needed to sleep beside her, for months afterwards, because he was afraid.
51 Your victim, herself, took six days off work and also required counselling, which cost her $800. She suffered a further layer of anxiety when her children’s father threatened to take legal action against her for not providing a safe and secure home for the children. In addition, she incurred the expense of installing security cameras at a cost of $748, security lights at a cost of $400, block-out blinds and screens at a cost of $4,100 and the loss of a further four days of earnings ($800) because she needed to be present when tradesmen came to the property to repair the damage you had caused. Ultimately, due to her children needing to have her there when they came home from school in order to feel safe and secure, your victim had to cease her full-time job and confine herself to part time work during school hours. This resulted in a substantial reduction in earnings of approximately $20,000. She states that your crimes have psychologically scarred her and her children for life.
52 In sentencing you for these offences, the degree of harm caused is a relevant consideration and, in this case, the fact that there are three victims, whom you should have been able to see would be traumatised, adds to the objective gravity of your offending.
53 Your offending was committed out of a strong sense of grievance after the end of an eight-month de facto relationship. Unhappily, crimes against intimate partners or former intimate partners have so dramatically increased that there is now a need for dedicated lists in the Magistrates’ Court for Family Violence Intervention Order matters. Victorian courts have repeatedly emphasised the need to strongly condemn conduct against a former intimate partner. Courts have a duty to protect people so that they can feel safe in their own home and victims must feel vindicated. In sentencing for your offending, the predominant principles must be the denunciation of your conduct and general deterrence, which means sending an unequivocal message to would-be perpetrators of crimes like yours against a former partner that, if they behave in a vengeful way borne of a sense of entitlement, then they will be appropriately punished.
54 Given the prevalence of offending against intimate partners or former intimate partners and the fact that you have had two-and-a-half years to try and address the reasons for it but did not do so, it is not appropriate to elevate your need for treatment, as outlined by Ms Lechner, and considerations of rehabilitation, above the predominant sentencing principles which I have mentioned. It is imperative that men understand very clearly that they do not own their partners or former partners and offending by way of revenge or attempts to intimidate or frighten former partners will not be tolerated. It is fundamental that an adult should be able to end a relationship without fearing reprisal from her former partner.
55 In addition to general deterrence, there is a need for some emphasis upon specific deterrence because of the repeated and persistent nature of your offending against your victim. You have a limited criminal history, but it does involve damaging the property of another person when vicariously venting a grievance of Ms Hind. The fact that you have been largely of prior good character does not exclude the consideration of specific deterrence, albeit that it is not to be given as much weight as in a case where there has been a criminal history of prior repeated acts against a former intimate partner. Having said that, I note that, unlike many offenders before this Court, you have no drug or alcohol problems which are of concern.
56 As part of the intuitive synthesis I have taken into account your background, as detailed in Ms Lechner’s report, and your counsel’s submissions. Your parents separated when you were aged about 13 and you felt that you never received love from your father. You appear to have had learning difficulties at school and ultimately left Dandenong Technical School partway through Year 9 and have ongoing poor literacy skills. Ms Lechner considered that these factors contributed to chronic feelings of low self-esteem and inadequacy, which were reinforced by relatively lowly paid, unskilled manual employment.
57 Ms Lechner noted that you had been in a series of long-term intimate relationships, including two marriages. She considered that you have high emotional dependency needs, possibly a hangover from the emotional distance you experienced with your father. She noted your fear of being alone and your tendency to uproot your life in order to move in with partners within a short period of time. She considered that you seek your own sense of self-worth through your partners’ acceptance, approval and love and that you felt rejected, disrespected and made to feel worthless by your victim. I here interpolate that your victim’s statement to police gives a different complexion to your relationship in which she alleges that you manifested a number of controlling behaviours, but, as this aspect was not litigated before me, I make no determination about it. However, even if you had been made to feel unworthy, that is not mitigatory of your offending. Ms Lechner expressed concerns about you being an active suicide risk and your mental health further declining in prison. In this regard, I note that you are still grieving the death, in January this year, of your mother to whom you were close. I also accept that the term of imprisonment I impose will most likely result in you losing your employment and your rental accommodation, which is very difficult for a man of your age.
58 I accept that, at the age of 54 years, you are in a vulnerable psychological state. Although, I agree with the prosecution submission that there is no appropriate sentence other than a term of imprisonment with a non-parole period, I acknowledge that serving a term of imprisonment for the first time at your age, with your psychological vulnerabilities, is likely to be onerous. This is particularly so during the time of the COVID-19 pandemic. Management of the pandemic in prisons has necessitated you being isolated for the first 14 days after I remanded you in custody. I have no doubt that that would have been very challenging for you. I am aware that there are ongoing restrictions in prisons, which prohibit contact visits and limit out of cell time in order to facilitate social distancing. In addition, the number of rehabilitative programs available to prisoners is significantly reduced. At the present time, there is no end in sight for such restrictive conditions of incarceration and it is appropriate that I take that into account in sentencing you. These factors may well increase the risk of deterioration in your mental health. I consider it imperative that you be monitored psychologically, given the risk associated with your depression, anxiety and suicidal ideation. On top of your psychological condition, I acknowledge that you need to manage conditions of Diabetes Type 2, elevated blood pressure and elevated cholesterol, by taking medication.
59 I have taken all these personal factors into account in determining both the head sentence and the non-parole period which I intend to set, being conscious at all times that, whether you are granted parole, is a matter not for me but for the Adult Parole Board.
60 Your offending involving the burglary on Charge 1 is inextricably entwined with the offence of intentionally damaging property on Charge 2. For this reason, although they are appropriately acknowledged as separate offences and, indeed, you smashed a window for the purpose of committing the burglary, the principal of totality makes it appropriate that there should be only modest cumulation in relation to the burglary where I consider the circumstances of intentionally damaging property to make it the more serious offence. I have applied this same reasoning in relation to Charge 3, burglary, and Charge 4, intentionally damaging property both of which were committed on 31 May 2018.
61 On Charge 1, burglary, you are convicted and sentenced to be imprisoned for a period of 12 months.
62 On Charge 2, intentionally damaging property, you are convicted and sentenced to be imprisoned for a period of 12 months.
63 On Charge 3, burglary, you are convicted and sentenced to be imprisoned for a period of 12 months.
64 On Charge 4, intentionally damaging property, you are convicted and sentenced to be imprisoned for a period of 15 months.
65 On Charge 5, intentionally damaging property, you are convicted and sentenced to be imprisoned for a period of 5 months.
66 On the Summary Charge of trespass, you are convicted and sentenced to be imprisoned for a period of 3 months.
67 The base sentence is that of 15 months imposed on Charge 4. I direct that 2 months of the sentence imposed on Charge 1, 8 months of the sentence imposed on Charge 2, 2 months of the sentence imposed on Charge 3, 2 months of the sentence imposed on Charge 5 and 1 month of the sentence imposed on the Summary Charge of trespass, be served cumulatively upon the sentence imposed on Charge 4 and upon each other. The total effective sentence is thus 30 months’ imprisonment. I direct that you serve a period of 15 months’ imprisonment before becoming eligible for parole.
68 I declare a period of 22 days’ pre‑sentence detention be time reckoned as already served under the sentence imposed this day. Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years with a non-parole period of 3 years.
69 Pursuant to s86 of the Sentencing Act 1991, as you have been convicted of Charges 1 to 4, and I am satisfied that as a result of the said offences, your victim has suffered damage to property, I order that you pay compensation to your victim in the sum of $1,400.
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