Director of Public Prosecutions v Perkins

[2017] VCC 680

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01026

DIRECTOR OF PUBLIC PROSECUTIONS

v

MELISSA PERKINS

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2017
DATE OF SENTENCE:	22 May 2017
CASE MAY BE CITED AS:	DPP v Perkins
MEDIUM NEUTRAL CITATION:	[2017] VCC 680

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson	Office of Public Prosecutions Victoria
For the Accused	Ms C. O'Shea	Victoria Legal Aid

HER HONOUR: 

1Melissa Perkins, you have pleaded guilty to one charge of aggravated burglary, one charge of recklessly causing injury and one charge of contravening a family violence intervention order.  The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for charges of recklessly causing injury and contravening a family violence intervention order is five years' imprisonment. 

2You have also pleaded guilty to a summary charge of contravening a conduct condition of bail, the maximum penalty for which is 30 penalty units or three months' imprisonment. 

3Turning to the circumstances of the offending, the prosecutor presented a summary of your offending which is Exhibit A in these proceedings. 

4You and the victim in this matter, Mr Paul Burkby, had been in a de facto relationship for 17 years.  You have three children together, a daughter then aged 16 years, and twins, then aged 11 years. 

5You and Mr Burkby separated in October 2015 and Mr Burkby later began living with his new partner, Ms Melanie Odgers.  The children continued to live with you. 

6Following the separation, both of you sought and obtained intervention orders against each other.  On 22 February 2016 the Broadmeadows Magistrates' Court made an intervention order that prohibited you from committing family violence against Mr Burkby or from damaging his property. 

7At around 12.50 pm on 10 March 2016 you drove past Mr Burkby's home in Wallan and saw him and Ms Odgers standing outside.  Mr Burkby had a bandage over his nose and face as he was recovering from surgery to his nose from the previous day.  Seeing the two of them, you wound down the window and began to abuse Ms Odgers calling her a "slut".  You then continued driving but returned shortly after and stopped outside the house.  Mr Burkby told Ms Odgers to go inside.  As you walked towards Mr Burkby he said, "Don't, leave now".  He then went inside and locked the front door. 

8Meanwhile you followed Mr Burkby to the front door, kicking it and yelling, "Let me at that slut”, I'm going to get you, you fucking moll”.  Mr Burkby lent hard up against the front door.  After a pause he opened the door to see if you had left.  At the same time you pushed hard against the door, falling into the entrance.  In doing so, you caused Mr Burkby to dislocate his right shoulder.  He had a pre‑existing shoulder problem, having previously dislocated his shoulder in an unrelated incident. 

9Having fallen into the entrance of the house, you began to throw punches at Mr Burkby.  The prosecution summary describes these throws as "clipping him in the face".  Mr Burkby tried to push you out of the front door with his legs.  In response you punched him to the groin area.  He then grabbed you by your hair and forced you out the door.  

10Mr Burkby then called 000.  When the police arrived shortly after you were standing in the middle of the road shouting abuse, saying words to the effect, "He's over there with the slut he's cheating with."  You told police the incidents began because they laughed at you as you drove past. 

11Mr Burkby was taken to the Emergency Department of the Northern Hospital by ambulance.  He was treated for the dislocated shoulder and for swelling, bruising and bleeding from his nose. 

12At the time of this incident on 10 March 2016 you were 33 years of age and had no prior criminal history.  Mr Burkby was aged 36 years of age. 

13You were arrested and bailed on a condition that you have no contact with Mr Burkby.  Later that night in breach of the bail condition you sent Mr Burkby two text messages and a further four text messages over the next four days, making disparaging comments about his new partner.  Mr Burkby repeatedly asked you to stop contacting him as you were breaching your bail. 

14On 13 March 2016 you rang Mr Burkby saying words to the effect, "I hope she was worth it because I'm going to gaol.  You gonna look after the kids when I'm in gaol?"  Throughout the call Mr Burkby said you were breaching your bail but you would not listen. 

15Mr Burkby in his victim impact statements dated 30 August 2016 and 9 May 2017 says that since the incidents he has had ongoing concerns for his physical safety and that the events placed emotional strain on his relationship.  Moreover, that his shoulder dislocated again one week out of the incident requiring surgery.  He says that the combination of events placed pressure on his work performance resulting in his decision to resign from his long‑standing position as a business manager in June 2016.  For Mr Burkby the incident not only resulted in physical pain and injury, but also considerable distress that has had an ongoing impact on his home and work life. 

16When interviewed by police on 10 March 2016 you made admissions to entering the property and breaching the intervention order.  You said you were driving past and saw your ex‑partner and his new girlfriend at the front of the house.  You said that you should have left but then wanted to tell his girlfriend to stay away from your children.  You told police you were very angry but that you weren't intending to hurt either of them; that you just wanted to confront your partner's new girlfriend and tell her not to go near my kids.  You admitted pushing and kicking the door open, knowing Mr Burkby was on the other side trying to stop you.  You also admitted punching him because he'd been unfaithful to you. 

17Turning now to your plea.  Your guilty plea was offered in May 2016 which the prosecution agrees was at the earliest opportunity.  The history of these proceedings was complicated by the finding in August 2016 of forensic psychologist Ms Pamela Matthews that you were unfit to stand trial.  Following Ms Matthews' assessment the prosecution arranged for you to be further assessed by Forensicare neuropsychologist Dr Neilsen in September 2016 and by Dr Dion Gee, forensic psychologist, in January 2017.  Based on Dr Gee's assessments and findings, the fitness investigation was terminated in January 2017 and the matter listed for the plea in May 2017. 

18In his report dated 20 January 2017 Dr Gee summarises the finding of the neuropsychological assessment of Dr Nielssen.  She found that whilst your cognitive performance was generally borderline overall, you do not have an intellectual disability.  Dr Gee having undertaken comprehensive assessments expresses the opinion that in addition to "a degree of diminished cognitive capacity" you "met the DSM‑5 diagnostic criteria for a major psychiatric disorder, namely major depressive disorder", a disorder that did have some impact on your capacity for cognitive and behavioural control.  He concludes, however, that your presentation at the time did not result in you lacking an ability to understand the nature, quality or the wrongfulness of your conduct. 

19I turn now to your personal circumstances.  As I said, you are now 34‑years‑old.  You were 33 at the time of the offending.  It is relevant to the sentence that I am about to impose that I outline your personal circumstances in some detail as it is apparent that the history of your relationship with Mr Burkby and your mental health had a bearing on your offending contact. 

20You are the third child born to parents,, Brian and Julie Perkins and grew up in Coolaroo.  Your father was an industrial painter and your mother a kindergarten teacher.  You had a happy childhood and enjoy a good and supportive relationship with your parents and siblings. 

21You struggled at school.  In 1998 you left high school having failed Year 10.  It was suspected you had dyslexia, but you were never assisted with any integration aid. 

22In the same year at the age of 16 you met Mr Burkby, then aged 19 years and commenced a relationship.  The following year when aged 17 you gave birth to your first child, a daughter named Brittany.  Brittany is now 17 years of age and has dyslexia.  In the years that followed, you devoted your life to the care of your family including twins, Blake and Courtney Burkby, born on 3 August 2005.  One of the twins, Courtney, has been diagnosed with autism and has an intellectual disability and requires significant additional care. 

23Following the birth of your twins you were admitted for three months to the mother and baby unit at Werribee Hospital for post‑natal depression.  According to the assessment of Associate Professor Andrew Carroll, consultant forensic psychiatrist who assessed you for the purposes of your plea on 7 February 2017, you were treated with antidepressants and continued this for several years afterwards. 

24The report of Dr Gee details the various diagnoses given during your subsequent periods of engagement with the public mental health system.  He states that between February 2015 and May 2016 you presented at Northern Area Mental Health Service on four occasions, initially receiving a diagnosis of mild mental retardation with non‑minimal impairment in behaviour.  In December 2015 you were diagnosed with an acute stress reaction while in March 2016 you were diagnosed with a mild depressive episode and acute stress reaction.  Dr Gee states that in May 2016 you were admitted again after an attempt to self‑immolate with a diagnosis of an adjustment disorder and your care was transferred back to Northern Area Mental Health Service after discharge.  Dr Gee reports that you then commenced an antipsychotic medication, Seroquel.  He states that most recently when reviewed on 3 June 2016 you were given a primary diagnosis of ‘emotionally unstable personality disorder borderline type’. 

25You have never held paid employment and are in receipt of a disability support pension.  In 2012 you were diagnosed with fibromyalgia causing severe chronic abdominal pain according to the report of your general practitioner, Dr Greculescu of the Wallan Medical Clinic dated 22 August 2016. 

26You have also had significant gynaecological problems due to endometriosis resulting in numerous surgical procedures followed by a hysterectomy in 2015. 

27In the lead‑up to these events and follow your separation, you attempted suicide in December 2015 by overdosing on Endone requiring your admission to hospital for several days. 

28In January of 2016 police applied for an intervention order against Mr Burkby on your behalf.  The application and summons for an intervention order dated 14 January 2016 states, "This is the second reported incident of family violence to police.  However, several other incidents where the aggrieved family member (AFM) was physically assaulted have occurred in the past but have not been reported. On Sunday 10 January 2016 the AFM and respondent have had a verbal argument over separation of property and its assets.  The AFM stated the respondent was threatening to kick her out.  The respondent stated the AFM believes that he has a new partner”. 

29The intervention order was made in February 2016 and a cross‑application by Mr Burkby was also granted.  The basis of the application made by Mr Burkby has not been provided to me in these plea proceedings. 

30Finally, the night prior to the incident you attended hospital with acute abdominal pain and were administered an injection of an opioid medication. 

31It is against that history that the offending by you occurred.

Prosecution Submissions 

32Mr Henderson, who appeared for the Crown, submits that this case calls for a sentence of immediate imprisonment. The offending involved a confrontational aggravated burglary in the victim's home, in contravention of an intervention order made for the protection of the victim.  The prosecution submits that an immediate term of imprisonment is required to reflect the objective seriousness of the offending and the relevant sentencing considerations of just punishment, general and specific deterrence, and denunciation of the offending. 

33Moreover, the prosecution submits that this is a situation to which the decision of Hogarth applies.  In Hogarth the Court of Appeal referred to the seriousness of confrontational aggravated burglary and the fact that the maximum sentence for the offence was increased in 1997 from 20 to 25 years' imprisonment. 

Consideration

34In Hogarth two men invaded the home of the victims, tied the female victim's ankles together with electrical tape, asked her for the location of her safe and stole items worth $25,000.  The appellant who remained in the car while the aggravated burglary was occurring had in fact, initiated the offending because he was angry that the victim's son had not repaid a debt to him.  The appellant drove his co‑offenders to the victim's house and agreed that they would gain entry for the purpose of stealing, knowing the victims were likely to be present.  In characterising the offending the Court of Appeal referred to the confrontational aggravated burglary or ‘home invasion’ as:

“… a particularly nasty form of criminal conduct.  Typically a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong.  The entry of the offenders ‑ acting in anger and often fuelled by alcohol ‑ is itself a terrifying experience for the householders irrespective of what may occur after entry.”

35The decision in Hogarth was considered by Meyers where the Court of Appeal said that in determining the appropriate sentence for an offence of aggravated burglary, it would "in large part depend on a careful assessment of the relevant seriousness of the offence." 

36Here, in my view, there are many factors that distinguish this aggravated burglary from that described in Hogarth.  While the aggravated burglary was motivated by your emotional upset and anger, many of the aggravating hallmarks of the aggravated burglary in Hogarth are absent.  Your offending was not planned but occurred spontaneously and a maelstrom of distress and high emotion.  You were not in company, you were not carrying a weapon.  The offending occurred during daylight hours.  Your violent outburst occurred at the last minute and was of a relatively short duration.  There is no evidence that prior to this event you were someone of whom your former partner was particularly frightened. 

37I accept that consistent with your admissions to police in approaching the front door you were in primarily motivated (and whilst in a state of emotional distress) to tell Ms Odgers to stay away from your children. 

38On your behalf Ms O'Shea submitted that it was relevant in sentencing you that you yourself had been a victim of family violence during the course of your relationship with Mr Burkby. 

39Your parents are the legal guardian of Ms Talia Perkins who gave evidence in the plea.  She spent considerable time with you both during the course of your relationship, often spending weekends with you.  Having heard her evidence I am satisfied that the relationship was a volatile one with escalating verbal arguments between the two of you and at times physical fighting, described by her as "pushing and shoving "but "nothing too extreme".  Whilst Ms Perkins gave evidence that you told her you had been assaulted by Mr Burkby causing bruising to your face and body, her inability to recall any details as to the time frame for this incident precludes me from making any finding as to its relevance in sentencing you.  I accept, however, that yours was a mutually volatile relationship and had been for some time leading up to these events. 

40Your counsel, Ms O'Shea, appropriately agreed that as with any confrontational aggravated burglary the incident was serious.  In my view, however, the distinguishing features lead me to conclude that your offending was at the lower end of the range of offences of this type. 

41Mr Burkby's injury was sustained when he momentarily ceased pushing against the door.  Your plea to recklessly causing injury is an acknowledgement that in continuing to force your way into the home, you foresaw that your conduct would probably cause injury to Mr Burkby.  In the circumstances, I consider the degree of recklessness to be at the lower end of the scale. 

42Moreover, it is clear that the circumstances leading to charges 1 and 2 overlap considerably, certainly in a temporal sense.  However, the fact that a violent incident occurs in breach of an intervention order in place for the protection of the victim is an aggravating feature of the offending. 

43You also showed disregard for the conditions of your bail in repeatedly contacting Mr Burkby by phone despite his repeated request that you cease doing so.  The need for general and specific deterrence and to denounce the offending are certainly factors relevant in sentencing you. 

44There are other significant mitigating factors present here, however, that are relevant and to which I have had regard in sentencing you. 

45In entering an early plea you saved the victim from having to endure the distress that is often associated with giving evidence and you have saved the community the cost and expense associated with a criminal trial.  I accept that the plea being entered at the earliest opportunity is accompanied by remorse for your conduct. 

46I turn now to your state of mental health, both now and at the time of the offending.  Dr Carroll in his report dated 19 February 2017 diagnoses you with an adjustment disorder with anxious and depressed mood.  He states that at the time of the offending you were suffering a "depressive disorder".  Dr Gee also diagnosis you with features consistent with "a major depressive disorder of moderate severity in partial remission" with you also "advancing a disturbance in personality functioning that would significantly thwart your capacity to function productively." 

47At the time of the offending Dr Carroll states you were "pathologically disinhibited due to a combination of your depressive illness, your anger and the impact of the pain killing medications."  The evidence suggests that you were not able to think clearly or make calm reasoned decisions and appropriate judgments.  Dr Carroll concludes there is no evidence, however, to suggest that you were unable to understand the wrongfulness of your actions. 

48Consistent with the conclusion expressed by Dr Carroll, Dr Gee - in discussing the offending with specific reference to the circumstances giving rise to the charge of recklessly causing injury - expresses the view that whilst your actions were dangerous, it was "not necessarily the case that you acted with full knowledge that your conduct would probably result in the injury caused to the victim", but rather, "[you] presented as a mentally compromised individual with a reduced cognitive capacity and enduring permanent pathology that impacted on [your] ability for adaptive self‑regulation.  Specifically [you] present with reduced control, mastery over [your] cognitive emotional and behavioural states and appear prone to environmental influence and/or control." 

49Whilst I am not satisfied that your mental state at the time of the offending affected your ability to appreciate the wrongfulness of your conduct, I accept that the combination of your depressive state and impaired mental functioning inhibited your ability to make rational decisions and to moderate your behaviour.  Accordingly to some degree your moral culpability for your offending is reduced and the application of both general and specific deterrence is moderated. 

50It is also of relevance that at 34 years of age you have no previous criminal history.  You are to be sentenced as a person of otherwise good character. 

51I am satisfied that your offending was entirely spontaneous, committed whilst in a volatile emotional state in circumstances where your mental health and reduced cognitive capacity impaired your ability to self‑regulate. 

52You have not offended since May 2016 and no further breaches of the intervention order are alleged. 

53I am advised there are two subsequent charges against you involving Mr Burkby; one criminal damage and the other a driving matter, but the circumstances of those offences have not been described to me. 

54Following the incident, you sought counselling with a psychologist Ms Kerry Consollo and received support from Family Care between January and June 2016.  In a letter dated 17 July 2016 Ms Consollo states that you have, and I quote, "a good supportive network and have established good connections with professionals to assist with regulating your emotions.  She states that you have demonstrated good insight regarding the consequences of acting impulsively." 

55The absence of any prior criminal history coupled with the fact that no further offending is alleged since May 2016 leads me to conclude that with ongoing mental health supervision, support and treatment, your prospects of rehabilitation are very good. 

56Both Dr Gee and Dr Carroll raise concerns for your mental health if you are imprisoned.  Dr Carroll's opinion is that your low intellect, chronic complex medical problems including chronic pain, very limited coping skills and fragile mental health mean that imprisonment and estrangement from your children “would have a catastrophic effect on [your] mental health”.  Dr Gee states that at present there is reduced scope within the adult prison system to respond to your mental health needs from the psychological perspective unless your mental state were to decline to a point where you required acute mental health care. 

57Dr Gee does, however, highlight the importance of ongoing monitoring of your mental health state given your presentation during his assessment, difficulties with adaptive self‑regulation, depressive pathology, past suicidal ideation and “a tendency to decompensate” during times of stress.  He states that appropriate psychological intervention services aimed at addressing these issues are, "currently not accessible within female custodial environments, although could be accessed within a community‑based setting if she were given a community disposition." 

58The twins now live with their father, but Brittany continues to live with you.  It is not submitted that hardship could be established if you were imprisoned, as other family members are available to care for Brittany.  I accept, however, that separation from the children would make imprisonment combined with the other matters I have discussed more burdensome for you.  There has also been the additional burden of delay in finalising these matters whilst the question of fitness was explored, appropriately, yet through no fault of yours.   

59Having regard to the various sentencing considerations to which I have now referred, I have determined that, notwithstanding the serious nature of the charges, that just punishment, denunciation and deterrence, both general and specific to you, can be appropriately reflected in a lengthy community correction order combining punitive and rehabilitative features aimed at reducing the risk of reoffending and thereby protecting the community. 

60The Court of Appeal in a guidance judgment in Boulton discuss the types of offences for which a community correction order may be suitable stating:

"It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some cases of rape and some categories of homicide.  A sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects for rehabilitation.” 

61In my view, this is such a case.

62I therefore sentence you on charges 1, 2 and 3 and in respect of the summary charge, Charge 13, being of contravening a conduct condition of bail to a two year community correction order with conviction.  Having regard to the pre‑sentence assessment, I order that the conditions of the two year community correction order are that you are supervised by a Community Corrections officer and that you receive assessment and treatment for your mental health and other offending behaviour programs as directed. 

63Due to your medical and mental health issues, you have been assessed as unsuitable to undertake unpaid community work and I have not ordered that as a condition of the order. 

64Ms Perkins, you have consented to the making of a community correction order.  You should be aware that it is an offence punishable by three months' imprisonment to contravene a condition attached to a community correction order.  Contravention of the order can also result in you being re‑sentenced for the original offences. 

65I also make an order for a forensic sample to be provided pursuant to s.464ZF of the Crimes Act 1958. This is done by obtaining a scraping from the inside of your mouth. You must cooperate with the authorities in the taking of the mouth scraping. If you do not cooperate, reasonable force may be used to obtain a blood sample from you. I make this order because of the seriousness of the offending, the making of the order is in the public interest and the making of the order is consented to.

66Pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty of these offences, I would otherwise have sentenced you to a total effective term of 15 months' imprisonment with a non‑parole period of nine months to be served.

67Have a seat, Ms Perkins. 

68ACCUSED:  Thank you.

69HER HONOUR:  I have signed the ancillary orders that are available to the parties. 

70Are there any questions in relation to the sentence that I have imposed? 

71COUNSEL:  No, Your Honour.

72HER HONOUR:  All right.  I'll sign that order.     

‑‑‑