Director of Public Prosecutions v Peoples
[2023] VCC 2320
•11 December 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01543
Indictment No. P11260907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS PEOPLES |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2023 | |
DATE OF SENTENCE: | 11 December 2023 | |
CASE MAY BE CITED AS: | DPP v Peoples | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2320 | |
REASONS FOR SENTENCE
---
Catchwords: Aggravated burglary (intent to assault) - 32 years of age at time of sentence - Relevant criminal history including prior conviction for aggravated burglary - Early plea - Worboyes v The Queen [2021] VSCA 169 - R v Verdins [2007] VSCA 102 limb 2 - limited remorse.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Liantzakis (For Plea) Mr Rattray (For Sentence) | Office of Public Prosecutions |
| For the Accused | Mr V. Vuu | Bowler & Co |
HIS HONOUR:
1 Travis Peoples, you have pleaded guilty to a single charge of aggravated burglary, an offence with a maximum penalty of 25 years' imprisonment. The specified intent at the time of entry was to assault and it is aggravated by the carriage of an offensive weapon, a small hockey stick.
2 You have admitted a prior criminal history of relevance to my task. You have after all committed an aggravated burglary in the past as well as some other serious offences including robbery, armed robbery and dangerous driving causing serious injury. You have been sent to prison on multiple occasions.
3 The matter was opened to me last Wednesday (6 December) by the prosecutor Ms Liantzakis in accordance with a summary dated 13 November of this year. That summary was marked as Exhibit A on the plea and your counsel told me it was an agreed summary. The CCTV footage was also played and marked as part of that same exhibit.
4 There is no point setting out all the agreed facts in my reasons as I will sentence pursuant to that agreed statement and the footage. That is important. The footage contains not just video but audio of this unpleasant event.
5 I will give only a very brief summary so that my reasons and ultimate sentence might be more readily understood by anyone who happens to access these reasons.
6 At the time in question, as I understand it, you were homeless but you were believed to be frequenting and sleeping in an abandoned apartment at the Ambassador Apartments down on the Nepean highway in Frankston. Your victim, 47-year-old Matthew Taylor, had an apartment in that complex. You had known each other for about 18 months and there did not seem to have been any issues in that relationship. On 7 June of this year, he was at his flat with a couple of his friends, Craig Woodward and Amanda Fitzpatrick. You attended at 2.54 pm and without any warning at all, you kicked the front door causing it to swing open. You entered and confronted Mr Taylor and Ms Fitzpatrick who were seated on the lounge. That is an agreed fact. See paragraph 6. They were not in the bathroom. You called them 'dogs' and 'rats' and demanded they provide you with your scooter battery charger. That had been lent to
Ms Fitzpatrick, as I understand it. Mr Taylor saw that item in
Ms Fitzpatrick’s bag and he recovered it and handed it to you. You left with the charger. Those are all agreed facts. That obviously should have been the end of it, not that your conduct to that point was vaguely acceptable. It at least was not criminal and is before me as the background to the actual offence that occurred shortly after. Had you left and not returned, you would not be sitting down in the dock.
7 Ms Fitzpatrick followed you out and there was some yelling and swearing. I watched that footage again in chambers, and she was asking you where something was, perhaps it was a reference to leggings, it is not entirely clear, and she mentioned something about $100 and gesticulated angrily towards you. Her tone was not conciliatory at all. You had previously been in an intimate relationship with her but that had ended by that point. She returned inside and she closed the door.
8 It is as plain as day from the exchange which can be observed that her interaction as you were leaving struck a chord, for you returned up the stairs and as you returned you were calling out 'dog' and 'fucking rat' and as you entered, you yelled out, 'Come on'. Once inside you were saying 'rats' and 'fucking rats' and 'you filthy dogs'. It was a brief entry and you left. Again, you should have settled on that, though even that conduct to that point was pretty extreme, but it was not criminal. But you took it a step further and as a result now you sit in custody.
9 For they closed and locked the door. You went back within seconds of leaving and this time you were holding the small wooden hockey stick that can be seen in the footage; it was not a toy. You kicked open the door which was locked and you entered for the third time, and this is the criminal entry, hence the aggravated burglary. As you entered you yelled out, 'Where are you?' You were inside for a couple of minutes and you left. At one point, as we can see, you came out with what appears to be an iPad but you obviously thought better of it and returned it. That is about the one sensible thing you did on this day, and of course I am not dealing with any theft. There is reference to the iPad in the interview.
10 Police attended. Your victim and Ms Fitzpatrick went to the police station to provide statements. It would seem only Mr Taylor did.
11 The CCTV footage was obtained showing your various entries including the final entry with the hockey stick. It was pretty unpleasant stuff as you entered by kicking the locked door and then saying, ‘You’re dead, dog’. As I have said, the footage is part of Exhibit A. I have watched that footage, as I have said a moment ago. I challenge even the most creative thinker to construe from that footage any concern being held by you about Ms Fitzpatrick. It shows without any question you were not entering the unit out of any concern held for her. Indeed, it seems obvious enough that her comments to you upon your first exit from the room when she followed you out must have stung to some extent and have driven or had some role to play in your ultimate criminal entry. You were calling her a rat and dog and uttering the words ‘Where are you?' as you went back towards the door, and that was not being uttered in a pleasant fashion at all. Then of course, more abuse followed within.
12 You were arrested a couple of days later on 9 June and made a number of admissions as set out in the summary. You agreed that you had, as you put it, 'just waltzed in' and returned with the hockey stick. You omitted to volunteer the fact that you kicked open the door. You described going in once, being confronted and then returning with the hockey stick so as to obtain your charger. That is not what happened as the footage makes clear. The notion of occupants confronting the person who has just kicked open the door and entered the unit has a pretty unusual ring to it. The fact is of course, you were given that charger at your first entry and then left, and you should not have ever gone back. Your counsel concedes that you were at that point minimising your conduct, but of course nothing you said in that police interview is in any way a matter of aggravation. You told the police your memory was a bit of a blur and hazy and that you were angry and emotional, and that is probably all correct. You provided not one jot of support for the instructions you have now provided to Mr Vuu about being incensed upon seeing the preparations being undertaken for intravenous drug use and then taking some steps to prevent that activity. That did not score even a hint of a mention in your interview. It was all about the charger. Repeatedly, the informant asked you not to leave anything out and to tell him about everything that happened upon entry. There was silence on that score and you describing an entry purely related to the charger. I put your counsel on notice that I was not prepared to act on your account in the absence of evidence. I will say more about that a bit later.
13 You were charged and remanded in custody and you have remained there since.
14 What a foolish and totally unnecessary offence for you to commit. What a ridiculous way to go about your business. How about going to the door yourself and knocking and asking for the return of an item? Even accepting that there might have been some prior steps taken to get it back which did not succeed, here, you got it back yourself after the first unpleasant but non-criminal entry but then you persisted in this nonsense which has placed your liberty at jeopardy. Just absurd. I say nonsense and absurd but regrettably of course it is far more serious than that. You were committing a serious crime.
15 To your credit, you pleaded guilty at the earliest opportunity and as I have said, you have remained in custody since your arrest.
16
So much then for my brief summary of the summary in this case. I will sentence pursuant to the more detailed agreed summary dated 13 November of 2023 and marked as Exhibit A, as well as the footage that I have referred to. I do not for one moment accept your account of the event. When I say account I am referring to the account you have provided to your counsel by way of instructions and that you have told
Dr Cunningham. That account is not before me in any satisfactory form and it runs completely counter to the depositional material, to the agreed summary and even your own interview. Also, as I say, the CCTV footage which shows your movements but also regrettably for you, captures what was said, or some of it at least. Your entry had nothing to do with being incensed at imminent drug use or in any way seeking to protect
Ms Fitzpatrick or seeking to stop her from using drugs or wishing to punish Mr Taylor for giving her drugs. That is all a complete fiction, one regrettably created by you in an endeavour to minimise the offence and hence the penalty.
Impact
17 There is an impact statement in this case from Mr Taylor which was marked as Exhibit B. There is nothing too surprising in what he describes in that impact statement. I put aside any reference to physical injury. He has lost his sense of security and he is hypervigilant. He is anxious and worried about everything. He does not feel safe. Aggravated burglary is so serious as it is notorious that it leads to a sense of insecurity in the minds of those whose homes are entered. Your victim will never forget your crime. It has caused him significant impact and I take that impact into account.
In mitigation
18 Mr Vuu conducted the plea in mitigation on your behalf and he relied upon a written outline dated 4 December 2023 and a report from
Dr Cunningham, a psychologist. He also had prepared a chronology.
19 Either by reference to the oral or written outline or the expert report, this court was more than adequately informed as to your personal, educational, employment, drug use and mental health history.
20 I mentioned a moment ago that he placed before me your instructions as to what took place within the premises and your reasons for entry. Those matters, that is this claim for instance that you were trying to prevent
Ms Fitzpatrick from using drugs and that motivated your entry and that you emptied syringes out onto the floor have all been raised as having some mitigatory value. They do not coincide with anything anyone else has said about the entry or even your own detailed account in the police interview. Nor the footage and audio. As I have said earlier, I put him on notice that I was not intending to act on your account in the absence of any evidence on that topic. He made it clear that he was not calling you. He also confirmed that the written summary was an agreed one. You have not been called and so be it. I act on the agreed summary. As I believe I have conveyed already, I am not satisfied on balance as to your instructions. Indeed, it is plain to me that this assertion was a complete fiction. This was a quite unnecessary distraction on the plea in my view, a plea which would have been far more easily accomplished had you not given these foolish instructions to Mr Vuu. Alas, that is not how it played out and I am troubled that you have seen fit to try to minimise your offending in the way that you have. It was one thing to do so close to the event in the course of a police interview. It is quite another to give these instructions six months later to be placed before the court in an endeavour to try and explain and mitigate the offence.
21 Back then to Mr Vuu's plea. He made submissions to the court as to the level of objective seriousness of the offence but again at least some of those submissions were based on your instructions which of course I am not satisfied of at all. For instance, the claim that you entered intending to assault Taylor for facilitating drug use. See paragraph 7. That is not what took place at all.
22 He worked his way through the matters set out in the case of Meyers[1]. He made submissions as to the relevant sentencing purposes and your prospects of rehabilitation. He conceded the relevance of your criminal history. He spoke of the support available from Ms Meaney and the possibility of NDIS support some time down the track.
[1]DPP v Meyers [2014] VSCA 314 (“Meyers”)
23 In the thorough plea conducted on your behalf, he relied chiefly upon the following matters in mitigation:
· Your cooperation with police and early guilty plea with heightened benefit owing to the global pandemic (Worboyes[2]);
[2]Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
· The presence of remorse;
· The application of the second limb from the case of Verdins;[3]
· Your disadvantaged background (Bugmy[4]);
[3]R v Verdins [2007] VSCA 102 (‘Verdins’)
[4]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
24 He conceded that prison was warranted here and of a duration exceeding your current pre-sentence detention. He argued that you could be released at some future time onto a suitably conditioned community correction order. So he was asking for what is often referred to colloquially as a combination-type order.
Prosecution
25 The prosecutor Ms Liantzakis had prepared some lengthy written sentencing submissions dated 5 December. They were marked as Exhibit C. She placed before the court the sentencing remarks of two judges who had dealt with you in the past. She made some brief oral submissions over and above the written submissions. In those oral submissions, the prosecutor challenged the instructions that you had provided. The Crown did not accept this was a low-level example of aggravated burglary and they took a less favourable view of your prospects of rehabilitation. They accepted that your plea was made at the earliest opportunity and that a general Bugmy finding might be open to the court and so too a second limb Verdins finding. If made, in each case, it would be a matter of what weight was given.
26 The prosecution written submissions were really quite uncontroversial going as they did to established matters of sentencing principle and working their way as they did through the Meyers factors as your own counsel had done in his written and oral submissions.
27 I see no need then to set out all the Crown submissions. I was referred to the sentencing statistics and observations of the courts in the past as to the seriousness of confrontational aggravated burglaries. The Crown argued that prison was warranted here but that a combination-type order would not fall outside the range of available sentences. Ultimately though, they submitted that was a matter for the court.
28 I will not ignore any submission made by either party, but at the end of the day, I have to reach my own view as to the appropriate sentence to be imposed here. I am not bound by either of the submissions placed before me by the parties. I have to exercise my own sentencing discretion.
29 I will come back a bit later to consider the various submissions made by the parties.
Background
30I will turn firstly and reasonably briefly to your background. I note that a previous judge, Judge Taft, commented on the fact of it being based entirely on self-report and that he had some difficulty discerning what portions were true, what portions exaggerated or boastful. See paragraph 12 of Judge Taft's sentencing remarks.[5] He used the term ‘braggadocio’. Your counsel in this case relies upon your disadvantaged background to attract the principles from the Bugmy and Herrmann[6] line of authority. My concern has been that it is all based on your self-report and you do not strike me as being too reliable.
[5]DPP v Travis Peoples (County Court of Victoria, Judge Taft, 23 May 2014)
[6]DPP v Herrmann [2021] VSCA 160 (‘Hermann’)
31In discussions with Dr Cunningham, you seem to estimate the number of children that you have, four to six. Leaving aside the strangeness of an estimation, that estimate is lower than the previous account given to Judge Taft in 2014 of eight children and more that the estimate given to Judge Smallwood in 2017 of three. Your counsel’s response when I queried that is to say that he does not rely on the account you have given as to the number of children, as though waving away any reliance on that detail resolves the issue of the credibility of your account more generally. The person reporting details of his background is the same person giving these fanciful instructions to Mr Vuu as to the motivation for entry which I am satisfied are not remotely true. The case of Bugmy is relied upon here. It is a case which has made a resurgence in recent times, over the last couple of years. It is my experience that very few pleas are now conducted where it is not mentioned and despite statements in a number of cases as to the need for an appropriate evidentiary foundation (see Herrmann), it is almost universally based on self-report either to counsel or to a psychologist. That is what I have here, and I have considered whether I can act on your account.
32I have considered the matter since the plea. I accept that it is probably no easy business sourcing and obtaining appropriate records and contemporaneous documents from the times of which you speak.
33Ultimately then, though it is based on your self-report, and whilst I do have some concerns as to your reliability as a historian, I will act on your account of your personal and family background placed before me. For that reason, I am not going to restate it all now.
34In a nutshell, I am told you are 32 years of age, born in June 1991. You are from a very large family with a sibship of 11 half and step-siblings. You had a twin sister. I was told you had no relationship with your biological father. You grew up with your mother and stepfather until you and your twin sister were taken away from your mother by your stepfather. You were about two years of age then. You were placed into foster care as a toddler and did not come back to your mother’s care until you were about eight. Life at home was dysfunctional and there was some conflict. You regularly ran away and left home permanently at the age of 14. Schooling was problematic. You were expelled in year 7. It is said that your early childhood in foster care was characterised by substantial instability, some physical abuse and excessive discipline. You last saw your mother when you were 14. I am told that you have no contact with any members of your large family. You have learnt in recent times that your twin has died. Homelessness has been a major issue and drug use has been very problematic for many years with very early alcohol and drug use. You had some jobs in catering and also in kitchen demolition and renovation work. I infer though that it is a pretty fragmented employment record as you say that your lifestyle precludes stable employment and that there have been plenty of interruptions along the way brought about by prison terms imposed upon you.
35I have mentioned already that you estimate that you have four to six children with whom you have no relationship. Your past estimate was eight in 2014 and three in 2017. Who knows where the truth lies? I have no idea at all. You are working in custody, I was told in the kitchen and I was also told that you are drug-free and that you have done courses. You had also arranged a doctor's appointment and it would seem that you may well lodge an application for the NDIS scheme with some support from Dr Cunningham, who will fill out or has filled out the relevant portion. You were supported in court by Ms Meaney and again you are today by her, but also by Ms Watson. I am told that you and Ms Meaney are now in what you view as a ‘relationship’ but it is one of only a handful of months' duration so that 'relationship' such as it is has not actually existed with you free in the community. You have of course known each other prior to your return to prison.
36You have a long enough criminal history of relevance to my task. I do not see any need to set out the full detail. The details are set out in the filed document and they will not alter. I have copies of two of the reasons for sentence and they are marked as Exhibit D on the plea. I note the past occasion in front of Judge Smallwood where he was told of the improvements that you had made and the place that you had to live. There was reference to Ms Watson who was on hand at that stage. The notion of commitment to turning your life around was mentioned back in 2017. See paragraphs 41-43. So the very same sorts of things being raised before me. In saying that, I am not saying that you did not feel those things back then, by the way. No doubt you hoped to turn your life around.
37Mr Vuu provided the chronology (marked as Exhibit 3) which gave a sense of the times you had been sent to prison. You emerged from prison he told me in February 2019 having served out the entirety of Judge Smallwood's sentence. You say that you did not apply for parole. The records suggest you applied and you were refused parole. Nothing hangs on that. Mr Vuu gave me a sense then of what unfolded upon your release from prison back in February of 2019. I was told that you formed a relationship with the victim of that dangerous driving causing serious injury offence for which you had been imprisoned. You moved to Ballarat for a time. That relationship failed but your instructions are that you had been living the most normal existence you ever had lived. You did some paid employment. Mr Vuu worked his way through the more recent matters listed on the criminal history, spelling out the offence dates of the various matters dealt with since your release and some of those go back to 2019. That may be so, but there is a fair spread of commission dates in 2019 and various dates in 2021 and 2022. He put it to me that you felt in yourself that you had made progress. You had not stopped drug use but you were at least managing it and he said lawfully supporting it. The dishonesty offences committed might suggest otherwise but who knows? You had not engaged in any treatment but you had been doing some work. You were still homeless but you had a sense that you had improved your position. To that end, he pointed to your statements in the interview about throwing away the last few years and the unravelling of the gains that you felt you had made. He said that you had failed to comply with the two community corrections orders imposed but that the last one was in May 2016 and within weeks you were back in custody having committed the dangerous driving causing serious injury for which you were ultimately sent to prison by Judge Smallwood in 2017.
38It is plain enough that you have not always taken the chances offered to you by the courts, but I do accept it has been some time since a community correction order was imposed.
39As to that criminal history, you have a long enough list of convictions for many styles of offending, and some of it quite serious. Amongst them, weapons, dishonesty, violence, drugs, property damage and Bail Act offences. There are separate convictions for dangerous driving causing serious injury, armed robbery, robbery and also an aggravated burglary. Your counsel could tell me nothing about that prior aggravated burglary conviction.
40You have been sent to prison on a number of occasions and here you are again. You have received sentences in which a non-parole period has been fixed. You have received those two community correction orders which were designed to foster your rehabilitation but breached them both.
41 I made it plain to you on the plea I hope, but if I did not, I do now - you do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and served them. Your past criminal history does not in any way aggravate this offending. I must pass a proportionate sentence for this crime. However, the criminal history does assume some importance because I have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. That risk is high as Dr Cunningham informs me. Past court orders have seemingly not deterred you. I will have to try again to deter you from offending in the future.
42 I have set out only some of the detail of your background placed before me. As I said earlier, your counsel relied upon the principles derived from Bugmy which have been restated in many cases since including the case of Herrmann that I mentioned. He relied upon it in the general fashion described in the case law. Of course, even if half of your account was true, it would still be an unenviable background. Not without some reservations, I am prepared to act on the account placed before me, and it follows then that I do find that your background was unenviable. I am satisfied that there was a level of dysfunction and instability in your early life. You were exposed to some conflict and violence. You no doubt had an absence of positive role models and an unsettled education to boot. Your early life really did not prepare you adequately for adult life. It is probably little wonder that you have had a faltering trajectory in your adult life. I do believe it was an unenviable background and I give it full weight in the way in which that term is employed in the case law including Bugmy, Herrmann and Sabatucci[7] and more recently discussed in cases such as Newton[8] and Dhal[9]. I take your background into account as far as I am able to including as giving rise to a modest reduction in culpability. Having said that though, these things do not all flow in one direction. Your background is just not going to miraculously alter overnight. It must have a role to play in the judgment that I make as to your future risk. Community protection cannot be ignored when you continue to offend, and of course the risk is high, as I am told by the expert.
[7]Sabbatucci v The Queen [2021] VSCA 340
[8]Newton (a pseudonym) v The King [2023] VSCA 22
[9]Dhal v The King [2023] VSCA 289
Guilty plea
43 I turn to the other matters raised on the plea, and the first of those matters is your guilty plea. It was a plea at the earliest opportunity.
44 You made admissions earlier still and you were cooperative with the police and I take that into account as well. You have taken this early responsibility for your crime.
45 As a result of your guilty plea, the time, the cost and the effort of a hearing in the Magistrates' Court or a trial up in this court has been avoided. All of the witnesses have been spared the experience of giving evidence. Giving evidence can be stressful especially for a victim recounting a traumatic experience. Your victim has not needed to do that. You have spared Mr Taylor and Mr Woodward that experience.
46 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
47 This matter settled in August of this year and at that stage the backlog in this court was well on the way to being cleared.
48 I believe, and I said this in the course of the plea, that we are close to the point in time now where any future decision to plead guilty will not be met by any heightened sentencing benefit at all. That is because not only have we moved beyond the pandemic, but the pandemic backlog in this court has now actually been cleared. We are operating at pre-pandemic levels as the Chief Judge announced recently to the profession. However, this case settled at that earlier point in time a couple of months before that announcement and though to a large extent the backlog in this court was then being brought under control, it is still appropriate to give some heightened benefit to the fact of the guilty plea in line with those principles set out in Worboyes. It should not be forgotten there are backlogs in other courts as well, including the Magistrates' Court. I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that Court of Appeal decision of Worboyes.
49 I take these various matters into account in mitigation.
Remorse
50 Your counsel argued that there was some remorse here. He pointed to your guilty plea and your admissions in the interview. You have pleaded guilty at the earliest opportunity. A guilty plea is usually, though not always, indicative of some remorse. Can I actually infer remorse from your guilty plea? The trouble here is I have the conduct of the plea. I cannot just ignore what was said on your instructions and for that matter how you behaved in the course of the hearing before me. Let me deal with the later point first.
51 Your attitude in the course of the arraignment was not suggestive of someone with much, if any, contrition. You were silent for a very decent period after you were asked how you were pleading and then you grudgingly entered a guilty plea, so much so that I felt it necessary to intervene at that very early stage and indicate that I would not accept a plea given in that fashion and that if you wanted a trial you would have one sometime in the new year. I had Mr Vuu go down and confer with you and then we went through the entire arraignment process again.
52 In the reading of the agreed summary, you were shaking your head on a number of occasions.
53 You have made various assertions through your counsel as to your explanation for attending at the premises. They all involved a level of offence minimisation and were untrue. I am not satisfied for one moment that you were trying to intervene to stop drug use. That is not the character of your entry at all. You were angry, no question about that, upset and plainly out of control as the CCTV makes very clear indeed. So your current stance in instructing counsel in that way and also telling
Dr Cunningham the same thing is problematic.
54 I am not satisfied there is much remorse here at all. You are undoubtedly sorry to be back in prison, of that I have no doubt. You have regret that you have let yourself down and caused such gains as had been made in your life to unravel. Again, I do not doubt that. But self-pity or regret for one’s own position, that is not remorse. As to remorse for committing this serious crime, there is very little evidence of that. I will find some limited remorse to be implied from your guilty plea and the admissions that you made.
Verdins
55 Your counsel argued that the second limb from the case of Verdins had some application here. That is to say that your condition was relevant to the kind of disposition selected and the conditions in which it should be served. That decision of Verdins that I mentioned is one from our Court of Appeal dealing with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both, and how that sort of thing might be taken into account by a court. That is a gross simplification of the case law in this area but it is sufficient for present purposes. Mr Vuu explicitly disavowed any reliance on the first, third, fourth, fifth and sixth limbs of that case. He said there was no realistic connection such as to reduce your culpability and no Verdins basis to reduce the weight to be given to general and specific deterrence. No Verdins-based increased burden and no risk of significant deterioration. Indeed you were very comfortable in prison. Too comfortable, which was rather the point he was making. The condition relied upon to enliven the second limb is the diagnosis that has been made of post-traumatic stress disorder. I accept that you suffer from that condition.
56 I give that limb some weight, that is the second limb, but there are limits given your history before the courts and the seriousness of this offence.
57 Of course, I am troubled by the ease with which you settle back in to prison life. You are to a degree institutionalised and that is worrying but the trouble is that when you commit a crime of this level of seriousness, what real choice do you leave a court in terms of the nature of the sentence and how and where it will be served?
58 Your counsel placed no submission before me as to any past or future increased custodial burden arising from COVID 19. This was no doubt in recognition of the fact that by the time you entered custody in June of this year, the impacts of the pandemic upon prisoners' conditions had eased altogether.
59 He did mention, however, the sad and distressing experience of sharing a cell with a prisoner who committed suicide in 2016 and the fact of other prisoners knowing of that fact and staying clear of you, leaving you to an extent isolated in custody. I do not ignore that but again the report of Dr Cunningham is not suggestive of someone with some increased burden in prison, either on a Verdins basis or otherwise. Though you do report night sweats and awakenings and pacing around your cell, you provided no account to Cunningham of this suicide and the effect of any isolation and indeed you told him that to use your words you 'thrive in gaol', and are 'fearful in the community' and that you 'love gaol and it is easy'. See paragraph 4. I have already spoken of my concerns as to institutionalisation.
Rehabilitation
60 I turn to your prospects of rehabilitation. The Crown argues that the court can only be guarded. Your counsel submitted that your prospects are fair. I am actually not sure there is much distance between those two descriptions. You have had some support from Ms Meaney but that relationship is in its infancy, it has not been a true relationship until after you entered prison and she has some issues in her own life, which were spoken of. It is undoubtedly better that you have that support than not, I make that clear. She says that she is prepared to have you reside with her. Whether that might be the position in six or 12 months from now is really no more than guesswork.
61 You have a lengthy enough criminal past history and a long-term problematic use of illegal drugs. I have this serious offence and it was committed by a mature adult, not some silly teenager, and one who still to some extent tries to minimise his conduct.
62 You will be deterred to a degree by the sentence I will soon impose. I have no reason to be in any way particularly optimistic as to what lies ahead for you. You have seen the inside of a prison frequently enough and that has not deterred you from reoffending. You have been given two orders with a community-based aspect and you have breached them both. I do accept though that you had made some efforts. Your expression of disappointment in letting yourself down and putting at risk such gains as you felt you had made in the interview spells out that you have obviously not given up on yourself. Though you have committed a variety of offences since your release in February 2019, this is by far the most serious of the offences, obviously. I am told that there is nothing else outstanding. You have been working and doing some courses in prison. I am told you are drug free though there is nothing to confirm that fact. I am though prepared to act on the claim. You are intending to apply for entry to the NDIS. Whether you apply, whether you are accepted, and if so what supports are offered are all things that are totally up in the air. Your counsel pointed to the fact of your arranging a medical appointment as further support for the steps that you are taking in the right direction. He argues that you are a more mature man now with better prospects and better prospects of complying with a community correction order.
63 He was suggesting that I should find that you had fair prospects of rehabilitation. I certainly will not write you off. Those prospects are not particularly strong in my view and the risk of future violent offending is high enough according to Dr Cunningham. It seems to me that I really can only be quite guarded. I am prepared though to find that you do have some prospects of rehabilitation and those prospects will significantly increase if you can actually abstain from illegal drug use. If you cannot, then they will grow dim indeed.
64 I have not said too much about that report from Dr Cunningham and I see no particular need to set out slabs from it. I accept his opinion as to the diagnosis and the level of current risk. Also the treatment needs spoke of and his concerns about institutionalisation. I do not ignore those things at all. The contention that your inability to resolve a conflict with the complainant and resorted to an habitual pattern of anger really does not quite match the event. You had obtained the charger. It had been returned to you.
The Offence
65 The agreed summary describes your offence. I will not say much more about it. Aggravated burglary is inherently serious. You know that. This was a confrontational aggravated burglary. You entered with the intent to assault and you carried an offensive weapon. I think too much was being made at least in the written submissions of it being what was described as a 'toy' or a children’s stick. It was not a toy. See for instance paragraphs 7, 8, 13.1, 13.3. Your counsel refers to its length at 60cm. See paragraph 7. Whatever its length, it was no toy. Let us call it a piece of wood. You were not carrying it for fun. You were not carrying it as a toy. You were carrying it offensively and kicked open the locked door and entered intending to assault.
66 The manner of assessing the seriousness of aggravated burglaries has been discussed in a number of cases including the case of Meyers that I mentioned earlier. That case sets out matters that might be considered. It is not some fixed formula. It does not set out some checklist where if a box is not ticked, the offence is hence not serious or less serious. It is a list of factors, the presence of which might be viewed as aggravating. The absence of a aggravating feature says nothing about the overall seriousness of the offence. These Meyers[10] considerations as to how a court might best assess the seriousness of an aggravated burglary are not exhaustive considerations. They include things such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened. Your counsel refers to that case of Meyers and works his way down the list from 13.1-13.7 in the written submissions.
[10]DPP v Meyers [2014] VSCA 314; 44 VR 486 at [48]
67 I believe he retreated significantly from the argument contained in 13.1. He was arguing that from the absence of any physical assault within the premises, that I could infer then that your intent at the time of entry was to assault by causing fear alone and not by the application of any physical force. I am not satisfied of that at all. You were completely out of control and what occurs within will so often depend on the stance taken by occupants within. That is why entry in this manner is just so problematic. It is a fluid event where really anything can unfold. It also struck me as a pretty bold submission to make in a setting where he knew that the depositional material contained allegations of physical assault and injury including even a photo of an injury to the arm and a medical appointment attended. I raised that with him. I would not have, had this issue not been raised in the manner it was. The fact is of course I am not dealing with you for what took place within the house. There are no assault charges before me for which you stand to be sentenced. But to confine your intent at entry as an intent merely to scare is just totally unrealistic and quite inconsistent with the way you were actually behaving. I do not accept the intent was so limited at all. Your intent at the time of entry was to assault and that is why you carried an offensive weapon.
68 Paragraph 13.2 contained what I judged to be a pretty unusual submission as to the mode of entry. Mr Vuu seemed to be putting forward almost as a mitigatory feature the absence of a feature of aggravation, that is that you did not use tools to defeat some sophisticated locking mechanism. He went on to describe your mode of entry as neutral which in my judgment really fails to comprehend the way that matter is listed in Meyers. This was a forced entry. The fact is your mode of entry involved kicking in a locked door. That is not a neutral factor at all. It is a forced entry.
69 It is true it was in the middle of the day and it is true you were alone. Insofar as it was said to be unsurprising to those within that you returned and that this is somehow should be mitigatory, that just cannot be right. Mr Taylor would have been very much surprised at your final entry, one would think, given that there was no reason for it and that you had your charger and you had left. Of course, I do accept it was not at night but the notion that because there had been two entries that the third entry, the illegal one, was less surprising and somehow less serious is not one that I accept for one moment.
70 I am not dealing with a door being kicked in in the middle of the night. I am not dealing with someone carrying a firearm or some scary adapted weapon. I am not dealing with a swarming crowd of intruders or a person entering of whom the victim was particularly frightened.
71 If I was, of course, the short answer would be I would sentence for that crime.
72 But the absence of some features of aggravation says nothing at all about the seriousness of this aggravated burglary which has its own features of aggravation. You have entered residential premises. You knew people were inside. You knew which people. You forced entry by kicking open the locked door intending to assault those or some of those within. You had armed yourself.
73 It was a relatively unsophisticated entry. Aggravated burglary is often unsophisticated. Anger is often the driving force and it was here. You were completely out of control. There was plainly not much planning. You just acted in the moment though of course you have obtained a weapon.
74 It is conceded by your counsel that you have committed a serious crime notwithstanding where he seeks to place this offence on the spectrum of offence seriousness and that is because it is an inherently serious crime to enter a home as a trespasser intending to assault and to carry a weapon.
75 Aggravated burglary is an inherently serious crime. It is punishable by 25 years' imprisonment. I believe it is always a fraught task trying to plot where on the spectrum of offence seriousness an offence sits. Categorisations are just that and differing judges might apply different descriptors or have different views as to where a crime might fall on the spectrum. Or differing views as to what a mid-level or high level or low level offence is. It is usually better just to look at the actual conduct itself rather than to trying to box it into a category. What was actually done, rather than trying to place into some arbitrary category. This one involved a confrontational aspect. It was a serious crime. It does not sit at the lowest level at all and nor was Mr Vuu suggesting that it did. He was suggesting it fell at the lower end of objective seriousness. I do not agree with that submission, but it certainly was not some high level example of the crime. In my view it falls towards the mid-level.
Purposes
76 I have to consider a number of purposes of sentencing. One such purpose is your rehabilitation and I do not ignore that. I do hope you can actually rehabilitate but your prospects, at least as presently viewed, are not particularly strong. There is obviously a serious enough risk of future violent offending in the future.
77 I have to punish you and I have to do that justly and proportionately. I must also must denounce your conduct.
78 I have to give weight to specific deterrence, and that relates to the need to deter you and that is of obvious importance here. Mr Vuu suggested otherwise but that just cannot be right. I must deter you from offending in the future.
79 Community protection is also important. You have entered another person’s property and you have done so with an intent to assault whilst armed. You knew people were within. You have a relevant criminal history. You presently have a high risk of reoffending. Plainly community protection is important.
80 Then there is general deterrence which relates to the need to deter future offenders – not you, but other people - and that is of importance here given the nature of this crime. I have to send a message to future likeminded offenders in an endeavour to cause them to actually reflect and to reconsider their position and not offend in the way that you did.
81 I must pay regard to the maximum penalty. This crime has, as I have said, a 25-year maximum term of imprisonment. I must also pay regard to the impact which has been of some significance here.
82 I have to pay regard to current sentencing practices and the impact of your crime. As to current sentencing practice, it is not a single controlling factor. I have looked at the statistics including the Sentencing Snapshot No. 262 for aggravated burglary and the online data which is a little bit more up to date. I have looked at some instances of sentences for this crime as set out in the Judicial College of Victoria Sentencing Manual. I note from the statistics at least, that when prison was selected, the most common prison sentence for aggravated burglary fell in the range of three to less than four years' imprisonment. There is though a very decent band of sentences falling in that lower band of two to less than three years but equally, a very decent band falling in the higher band of four to less than five years.
83 Sentencing is not some mathematical task. Statistics have inherent limitations. They tell me nothing about the individual features of a crime represented in the data. Other cases are not precedents and no amount of looking at other cases or the statistics can ever provide the answer to my task. Now many of the other cases dealing with aggravated burglary involve a non-confrontational entry, so an entry with an intent to steal. An entry where there is no desire for any confrontation. The hope in those crimes often enough is that the entry will in fact go completely undetected. This instance that I am dealing with was unmistakably a confrontational aggravated burglary with a weapon carried and with an intent to assault.
84 The Court of Appeal has spoken frequently enough of the seriousness of confrontational aggravated burglaries.
85 At the end of the day though, each case must be determined on its own facts. I am sentencing you for your crime, taking into account the matters in mitigation and aggravation in your case.
86 Prison is a disposition of last resort. Mr Vuu concedes that prison is required here and of a duration exceeding your existing pre-sentence detention. He submitted though that it might be open to structure a combination-type sentence, which would involve a further period in prison with your ultimate release in the future onto a suitably conditioned community correction order. He referred to statements made in the case of Boulton.[11] A lot has happened since that case, including a tightening up in the legislation. A community correction order could formally be combined with a sentence of up to two years in prison.
[11]Boulton v The Queen [2014] VSCA 342
87 If a combination-type order could achieve all the purposes of sentencing, I would be required to deal with you in that way and that simply reflects the fact that a court is never permitted to impose a more severe sentence than is actually required to achieve the various purposes of sentencing.
88 Mr Vuu argued that the certainty of release would be important in your case and that the fixing of a non-parole period would be crushing. If a non-parole period being fixed was a crushing outcome, I wonder what that really would say about the solid nature of the gains that you claim to have made.
89
You have breached two community correction orders in the past. Upon release from prison in February 2019 you have continued to offend in that year, in 2021 and 2022 and of course seriously on this occasion in June of this year. You have only very limited supports in the community. You certainly have no family structure. It is of course a positive that
Ms Meaney is on the scene. I note, as I said earlier, she is back in court here today, and of course it is a positive that she is on the scene and offering you accommodation but what is the true nature of that relationship? It has never really been tested in real life. You have decided to get together in that sense only since you have entered prison. Will that relationship and support and place of residence exist in three or six or 12 months. Who knows?
90 This crime is one of some seriousness. You have a high risk of future violent offending. I have no confidence that you would comply with such an order even if released today. Further, as it is conceded that necessarily there would be some additional time in custody, what do I know about the attitude you would take to such an order at the time of your release from prison? I said on the plea that the Adult Parole Board would surely be in a superior position to make judgments about your level of risk. They would also have available very strict conditions which could be the subject of a swift mechanism to reclaim you if you breach them as opposed to the very leisurely way in which a community correction order breach is brought back to court.
91 Finally though, there is the dimension of the actual sentence required here and it simply rules out a community correction order.
92 It is clear to me that in the circumstances of this case a combination-type order is not open in the sound exercise of my discretion. It would not adequately reflect the need to punish or deter you. It would not adequately deter others and such an outcome would not give appropriate weight to community protection.
93 Given the dimensions of the sentence I will soon impose, I am required as a matter of law to fix a non-parole period and I will in that way provide for the possibility of your early release on parole. That is all it is, a possibility. I am not permitted to consider whether you will actually be released on parole. I must proceed on the assumption that you will serve every day of the head sentence I will soon pronounce. Whether you are released on parole will be in the hands of the Adult Parole Board.
Sentence
94 I am sorry to have taken so long to get to the end destination here and you probably only want to know what the end destination is, but I will pass sentence upon you now. If you would please stand then, Mr Peoples, I will pass sentence upon you.
95 On Charge 1, the charge of aggravated burglary, you are convicted and sentenced to three years nine months or 45 months' imprisonment.
Total Effective Sentence
96 That is the only sentence and it follows then that the total effective sentence is that period, three years nine months (45 months) imprisonment.
. Non-parole period
97 I fix a period of two years and three months or 27 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
98 You have already served 185 days of this sentence by way of pre‑sentence detention and that is declared pursuant to s18 of the Sentencing Act and will be entered into the records of the court.
Section 6AAA.
99 I have taken into account your guilty plea. I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of this offence following a trial before a jury, I would have convicted and sentenced you to five years four months' imprisonment. I would have fixed a non‑parole period of three years 10 months.
100 Is there anything else from your perspective, Mr Vuu?
101 MR VUU: No, Your Honour
102 HIS HONOUR: Mr Rattray, anything?
103 MR RATTRAY: No, Your Honour.
104 HIS HONOUR: All right, that completes the matter. Mr Vuu, will you go down and see your client today?
105 MR VUU: Yes, Your Honour.
106 HIS HONOUR: That completes the matter then, Mr Peoples. Mr Vuu will come downstairs, he will have a chat to you. I will revise these reasons and get them to him as soon as that can be done, but he will come down and have a chat to you no doubt about what has occurred here today and your rights in relation to this sentence. Mr Peoples can be removed now, thank you.
---
0
8
0