Director of Public Prosecutions v Perry
[2025] VCC 190
•26 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL JURISDICTION
CR-24-01744
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MICHAEL PERRY |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Bairnsdale |
DATE OF HEARING: | 20 February 2025 |
DATE OF SENTENCE: | 26 February 2025 |
CASE MAY BE CITED AS: | DPP v Perry |
MEDIUM NEUTRAL CITATION: | [2025] VCC 190 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: pleas of guilty to one charge of aggravated burglary, with a weapon, one charge of contravention of a family violence order, one charge pf possession of a controlled weapon and one charge of driving while over the prescribed concentration of alcohol - offender had previously served prison sentence for family violence offending against same complainant – offender crashed car through fence at complainant’s home – entered house armed with knife – complainant terrified – 8 months pregnant - fled from the house and hid – children present in home – complainant’s husband lured offender away from property in his car – offender followed him – while offender’s car was stationary the husband pushed offender’s car into a ditch to prevent him from returning to complainant’s home – offender approached husband with knife – husband hit offender with car – police attended – offender arrested – complainant suffered profound and on-going impact – children affected
Cases Cited: Byast v R [2021] VSCA 344 Bennett v R [2021] VSCA 253 R v Sebali [2006] VSCA 106
Sentence: 3 years 8 months non-parole period 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Andrews | OPP |
For the Accused | Ms E. Allan | Daniel Taylor & Associates |
HER HONOUR:
1Michael David Perry, you have pleaded guilty to one charge of aggravated burglary and one charge of contravention of a family violence order.
2You have also pleaded guilty to two summary offences, possessing a prohibited weapon and driving with a blood alcohol level exceeding the prescribed concentration of alcohol.
3The offending, which occurred on 5 May 2024, was not the first time you have perpetrated serious threats and fear upon the complainant, Ashlee Mason[1] and her family. In 2016, after your relationship with the complainant had ended, your violent behaviour and threats towards her, in the presence of her young daughter, resulted in a significant term of imprisonment and a lengthy
family violence intervention order, which was still in place at the time of the recent offending.[1] A Pseudonym.
4While those matters do not attract any further punishment, of course, they are relevant to any prospects you might have for rehabilitation, and to the serious impact on the complainant and her family.
5At about 9.30 pm on 5 May last year the complainant was at home in East Gippsland with her husband Nathan Coldsen[2] and two of their children, aged seven and five. While standing in their kitchen Ms Mason and Mr Coldsen saw a stationary car in the neighbouring property. They saw the car accelerate and crash into the boundary fence, destroying a section of it. Mr Coldsen went outside and identified you, and hurried back to the house to alert Ms Mason. He then saw you approaching the house armed with a knife.
[2] A Pseudonym.
6Mr Coldsen armed himself with a cricket bat and Ms Mason climbed out a window at the front of the house and hid under the front deck, where she called her mother on her mobile phone and asked her to call the police.
7You tried to open the front door, and then entered the house through the kitchen door at the rear. You moved through the kitchen to the hallway, where you met Mr Coldsen. You turned around and left the house and went to your car, putting the knife in your pocket.
8You remained nearby, and Mr Coldsen got into his car and drove towards you. He yelled 'Come get me' to you, and you drove towards him. In what appears to have been a successful strategy to lure you away from the house, Mr Coldsen drove away onto the Princes Highway towards Orbost. You followed him close behind.
9As you both drove towards Orbost you were seen by police who were responding to the call made by Ms Mason's mother, and were driving towards Ms Mason's house. The police noticed that you were both travelling at high speeds and Mr Coldsen was flashing his high beam headlights.
10You continued to follow Mr Coldsen for about five minutes, before leaving the highway at Irvines Road, Orbost. Mr Coldsen then went to Irvines Road and saw you manoeuvring your vehicle towards the highway. Fearing you would return to his home Mr Coldsen used his car to push yours into a drain. You got out of your car and approached Mr Coldsen with the knife. He then hit you with the bull bar of his car, whereupon you returned to your car.
11Mr Coldsen called his father who arrived at Irvines Road and together the two kept you under surveillance. Meanwhile police had arrived at Ms Mason's home, and they were informed of the situation in Irvines Road. An ambulance was called to go there, together with other police. You were arrested and injuries to your head and chest were observed. You were breath tested and found to have an alcohol reading of 0.162. Police found three large knives on the ground near your car.
12A blood test conducted later at the hospital revealed blood alcohol content of 0.192.
13You were discharged from hospital the next day and interviewed by police. You made no comment during the interview. You have remained in custody since then. And as of today, I believe that is 296 days. I will check the accuracy of that later.
Gravity of the offending
14The maximum penalties for these offences reflect their seriousness - 25 years' imprisonment for aggravated burglary, five years for contravening a
family violence order, one year for possessing a prohibited weapon, and a fine for driving while exceeding the prescribed quantity of alcohol, as well as mandatory cancellation of any driver's licence.15By any measure your conduct was a serious example of the offences. You had a knife with you when you entered the house and you must have known how justifiably terrified Ms Mason would have been. You would have known that the children were likely to be there, as indeed they were.
16Indeed, another indication of the gravity of your offending, is the eloquent and moving victim impact statement provided by Ms Mason. She described how terrified she was that night, fearing for her own safety as well that of her sleeping children. She was eight months pregnant at the time. She said this recent attack thrust her back into the nightmare of violence she experienced at the time of the first attack. She said that since then she has struggled immensely with her mental and emotional health. She now feels that it is impossible to move forward, despite the steps she has taken to obtain higher qualifications. In addition she has had to cope with the harm done to her daughter initially at the first incident, who was aged three at that time, and was profoundly affected by it. She questions why she and her family should not be entitled to live lives free from violence and fear, when that is all she asks for.
17Your criminal history is relevant to this point. It is not extensive; it is limited chiefly to the serious offending in 2016, when, as I have said, Ms Mason was also the victim. You were sentenced to 66 months with a non-parole period of three years. A month later you were sentenced to a further four months for offending which appears to have been making contact with the victim in contravention of the intervention order.
18Because of that history, the gravity of the current offending is heightened. The fear experienced by Ms Mason this time was greater because it happened before. This might not be something you have fully appreciated. It may be because your memory of the events of that night is deficient. That leads me to consideration of your background and circumstances.
Personal background and circumstances
19You are a 40-year-old man who has suffered from mental health problems since childhood, when at the age of eight you experienced school refusal and were hospitalised for three months. Although you eventually completed Year 12, school had remained difficult for you as you continued to suffer from generalised anxiety.
20You later developed symptoms of depression and social anxiety, which became more pronounced in your teenage years.[3] This, and other descriptions of your mental health I have taken from the report of the consultant psychologist,
Ms Gina Cidoni, dated 19 February 2025.[3] Report of Ms Cidoni dated 19/02/25 at [60]-[61]
21After leaving school, you remained in work constantly, and were regarded as a good employee, as attested to by your most recent employer, in a letter provided to the court.
22Unfortunately your mental health conditions have been complicated by alcohol abuse over the years. It is necessary to refer to your mental health in some detail, as it has some bearing on the search for reasons for the offending as well as appropriate sentencing.
23In 2010, when you were aged about 28, you were admitted to the
Albert Road Clinic in Melbourne and were diagnosed with substance induced mood disorder and bipolar disorder, in addition to generalised anxiety disorder. You had several forms of therapeutic treatment and medications including Quetiapine, an anti-psychotic and mood stabiliser. For a while improvement was noted, but your condition deteriorated in 2016, by which time you had begun self-medication with alcohol and cannabis, which further contributed to your emotional instability and impaired functioning.24It was against this background that you committed the offences in 2016 to which I have already referred. Over the years you understood that more frequent drinking led to a significant decline in your mental health. You have made attempts at sobriety, including admission to hospital for detoxification, attendance at Alcoholics Anonymous, and medication to reduce craving, but in 2024 your drinking increased.
25In the lead up to the offending you were not taking Quetiapine, as your prescription had run out and you had not renewed it. You had been drinking that evening, as confirmed by the blood test.
26Ms Cidoni described your mental health at that time as significantly compromised due to a combination of severe alcohol intoxication, untreated
bipolar disorder and the destabilisation of your psychiatric treatment following the cessation of Quetiapine.[4][4] Ibid [121]
27Ms Cidoni stated that your memory deficits suggest alcohol induced cognitive impairment, and that your limited recollection, fragmented recall of events, and reports of confusion following the incident are consistent with disinhibited, emotionally driven behaviour rather than premeditated intent.[5]
[5] Ibid [121]
Verdins principles and reduced moral culpability
28This analysis leads directly to a consideration of the applicability of the principles in the decision of Verdins v R[6]. The bipolar disorder from which you suffer might be said to have contributed to your criminal culpability, but your failure to maintain your medication to control it, and the drinking of alcohol that night, were also part of the mix. There can be no accurate distinction applied to these three contributing factors, leaving the question whether moderation can be applied to your criminal culpability.
[6][2007] VSCA 102
29During submissions I was referred to three decisions dealing with this dilemma.
30In Byast v The Queen[7] the offender suffered from bipolar effective disorder which was untreated at the time, the offender having ceased taking medication which controlled it, believing he did not need it. He was also using cannabis. The sentencing judge did not accord to him the full benefit of the Verdins principles, in reduction of his moral culpability.
[7] Byast v R [2021] VSCA 344
31That decision was upheld by the Court of Appeal.
32In Bennett v The Queen[8] the Court of Appeal held that the sentencing judge had given insufficient weight to the Verdins principles, where the offender's mental impairment and alcohol use both contributed to the offending. His criminal culpability was reduced accordingly.
[8] Bennett v R [2021] VSCA 253
33Finally, in R v Sebalj[9] the availability of Verdins principles was considered in the unusual circumstances of self-induced psychosis. That offender had ceased using drugs and as a consequence experienced severe paranoia, for which he sought medical help, but he offended before help could be implemented. The Court of Appeal reduced the sentence, reasoning that there could be no definite conclusion as to whether the psychosis was drug induced or the manifestations of the subsequently diagnosed illness of paranoid schizophrenia.
[9] R v Sebali [2006] VSCA 106
34In considering the circumstances of this case, my view is that some weight should be given to your mental state at the time, resulting in sensible moderation of your criminal culpability.
35Ms Cidoni in her report gave detailed reasons as to why the burden of imprisonment is, and will continue to be, greater because of your mental health condition. She said your symptoms of generalised anxiety disorder and persistent depressive disorder have worsened leading to distress and increased difficulty in mood regulation.[10] You had been engaged in treatment and without it the previous pattern of disengagement of former years is being reinforced. That was the pattern that led to your offending.
[10] Ibid at [133]
36During the altercation when Mr Coldsen attempted to restrain you, you suffered back and shoulder injuries which have resulted in chronic pain, exacerbated in prison by inadequate bedding and prolonged inactivity, according to what you have told Ms Cidoni. This has added to your psychological distress.
37I take into account those additional burdens that arise from your particular mental and physical health conditions, as justifying some moderation of an appropriate sentence.
Other mitigating factors
38Other mitigating factors include your plea of guilty, which has avoided a trial and importantly spared the witnesses from having to give evidence, in what would have been a very distressing experience. You are entitled to a discount on your sentence, in recognition of its assistance to the criminal justice system in this way.
39I also accept it as an indication of remorse, which you have also expressed to Ms Cidoni, and which she accepted as genuine, despite your belief that the offending was less serious than that of 2016. It seems that having become aware of the contents of Ms Mason's victim impact statement you now understand the degree of terror to which you subjected her.
40Remorse and insight are important indicators of prospects for rehabilitation. Ms Cidoni's opinion was that those prospects are reasonable if you have structured psychiatric support with compliance with medication, and intensive drug and alcohol treatment. The evidence is that you engaged well in the past with your medical treaters, in particular your general practitioner. You have several other protective factors including strong family support, a good work history, and you are developing insight. A relatively long period of parole would likely assist with this engagement and progress, leading to reduction of the risk of reoffending.
Sentencing discussion
41Given the serious offending, both plea submissions were directed towards a head sentence with a non-parole period. It was conceded by Mr Moore for the prosecution that some moderation in the sentence was warranted by the Verdins principles, and the need to avoid a crushing sentence was part of
Ms Allan's submission on your behalf as well.42For the reasons already given you are not what is called a good vehicle for general deterrence, which calls for moderation. As for specific deterrence, while it still has a role to play in the sentence, the reduction and the risk that you might reoffend justifies a lesser role than otherwise. The non-parole period that I shall fix allows time to be spent attending to treatment in the community before the head sentence expires.
43Mr Perry, I sentence you to the following terms of imprisonment;
44For Charge 1; three years. For Charge 2; three years. For Summary Charge 4; six months, and for Summary Charge 5, a fine of $750. Your licence to drive is cancelled and you are disqualified from obtaining any further licence or permit for 19 months. That is a mandatory order.
45The base sentence for purposes of cumulation is the sentence for Charge 1. The orders for cumulation are as follows: six months of the sentence for
Charge 2 and two months of the sentence for Summary Charge 4 are to be served in cumulation upon the base sentence.46That results in a total effective sentence of three years and eight months. I order that you serve a minimum period of 18 months before being eligible for parole.
47I want to say something about the sentence for Charge 2. The maximum sentence for contravening a family violence order is five years. I have sentenced you to three years, which is more than half the maximum. This is because the contravention was a serious one, and it deserves a harsh sentence. Of course it is modified by the order that only six months of it is to be served in cumulation. That, and the other orders are designed to impose an appropriate sentence, reflecting the serious circumstances of the case, as well as your particular circumstances, and the need to avoid a crushing sentence.
48You have been in custody for 296 days.
49Counsel I will just confirm, do you agree with that?
50MR ANDREWS: Yes, Your Honour, the parties agree.
51MS ALLAN: Yes, that's agreed Your Honour.
52HER HONOUR: Thank you. That is to be reckoned as already served by way of pre-sentence detention, and I shall note that on the court record.
53If you had pleaded not guilty to these charges, I would have sentenced you to four years and six months imprisonment, with a non-parole of three years.
54The prosecution seeks an order for disposal of knives and other items and I make that order subject to any objection. I take it there is no objection to that, Ms Allan?
55MS ALLAN: No.
56HER HONOUR: Thank you. All right, now are there any other matters
Mr Andrews?57MR ANDREWS: Nothing further, Your Honour.
58HER HONOUR: All right. Ms Allan anything I have neglected or omitted?
59MS ALLAN: No, Your Honour may it please the court.
60HER HONOUR: All right thank you. Now you're on the screen so is Mr Perry, would you like an opportunity to speak with him briefly when I have left the bench?
61MS ALLAN: I would be grateful for that, yes please Your Honour.
62HER HONOUR: All right. I'll ask my staff to make that possible when I've left.
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