Director of Public Prosecutions v Potter
[2022] VCC 2111
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00846
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL POTTER |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2022 | |
DATE OF SENTENCE: | 30 November 2022 | |
CASE MAY BE CITED AS: | DPP v Potter | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2111 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated Burglary – Common Law Assault – Low-Level Example of Offending – Unusual Circumstances – History of Violent Offending – Mental Health – Supportive Family – Prospects of Rehabilitation – History of Community Based Orders – Imprisonment Warranted
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Meyers v The Queen (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Verdins v The Queen (2007) 16 VR 269; Romero v The Queen [2011] VSCA 258; Charles v R [2011] VSCA 399; Brown v The Queen (2020) 62 VR 491; Bradshaw v The Queen [2017] VSCA 273; Worboyes v The Queen [2021] VSCA 169; DPP v Reynolds [2022] VSCA 263
Sentence: 9 months’ Imprisonment – 18 month Community Correction Order – s 6AAA Declaration –
13 months’ Imprisonment with an 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr D. Thomas | Victoria Legal Aid |
HIS HONOUR:
Daniel Potter, you have pleaded guilty to the following offences:
a.One count of aggravated burglary (person present) contrary to s 77 of the Crimes Act 1958 (Vic). This offence carries a maximum penalty of 25 years’ imprisonment (Charge 1); and
b.One count of common law assault contrary to common law. This offence carries with it a maximum penalty of 5 years’ imprisonment (Charge 2).
Background
You were born in March 1979 and are now 43 years old. You live at unit on Greaves Street, Werribee with your partner, Norma Braun, with whom you have been in a relationship for two years.
In the month leading up to the offending, Ms Braun suffered a major stroke and was hospitalised for four weeks. You took on a number of care responsibilities for her, as well as general household duties, and during the period were suffering significant distress at the prospect of losing her.
The Victim of your offending, Mr Hussain Aga, lived in the property adjacent to yours in Linda Court, Werribee. Mr Aga was 39 years old at the time of the offending.
Circumstances of Offending
I sentence you on the basis of the Summary of Prosecution Opening dated 17 October 2022, which is an agreed summary.
At about 6 pm on Thursday, 2 December 2021, you left your home and walked to the adjacent property where the victim lived. You were carrying a number of black zip ties with you.
You opened the wire door at the front of the property and started banging aggressively on the front door with a closed fist and yelling loudly. You called out: “open the fucking door. I’m going to fucking kill you, you fucking cunt”.
The victim was in the property at the time. He was in the dining area eating a meal. His wife was also in the property, sleeping in another room.
Mr Aga, alerted by the banging and shouting, recalls thinking that the front door was getting kicked in.
10.Mr Aga approached the door and opened it slightly so that he could see who was there. You then kicked the door wide open and entered the property, pushing the victim backward into the house. (Charge 1 – aggravated burglary)
11.You grabbed Mr Aga by the collar and started punching him to the stomach. You punched him about six times. As you were punching the victim, you used your foot to close the door behind you. (Charge 2 – assault)
12.You continued to yell and swear at the victim as you punched him. You repeatedly told him that you were going to kill him. During the struggle, a chair near the front door was knocked over and a hanging picture was knocked off the wall.
13.As you grabbed the victim by his right ear, he managed to open the front door and exit the property. You grabbed hold of his arm, preventing him from leaving. You released his arm, allowing him to escape through the door, but then followed him outside and continued to swear at him.
14.Two locals, Mr Anthony Brincat and Mr Joshua Brown, were in Linda Court at the time. They saw you force your way into the property. They lost view of you as you entered the house, but saw you exit the house with the victim a short time later.
15.The two recall rushing to the property and confronting you as you emerged from the home. Mr Brincat said: “what the fuck do you think you’re doing?”.
16.You continued to yell, stating that the victim had killed your wife. You said that she had suffered a stroke, which was caused by a tick from pigeons that belonged to the victim. Mr Brown recalls that you kept screaming: “you’ve killed my missus, you’ve killed my missus.”
17.Mr Brincat told you to leave at which time you headed towards your residence.
18.The victim experienced “quite a bit of pain” in the right-hand side of his stomach after the incident. He had a small scratch on his right ear as well. He went back inside his property and told his wife what had happened. Then he contacted triple-zero to report the incident.
19.Later than evening, members from Victoria Police were notified of the incident and attended the property.
20.Police found a single black thong at the address, and a number of black zip ties, which you had dropped outside the property.
21.Upon consulting CCTV footage and the victim and witnesses, police attempted to contact you by telephone from details held on the police database but you terminated the call and when they attempted again, were unsuccessful.
22.Having formed a belief that you were at your residence, police attended the property on Greaves Street and forced entry into the unit. You could not be located; although police found a further black thong inside the unit, which matched the thong located at the property in Linda Court. They also found a number of black zip ties, which matched those left outside the property.
23.The next day, police reattended at your unit where you were located and arrested. You were transported to Werribee Police Station and interviewed during which you admitted to the offending. You told police of your belief that there is a connection between the victim’s pigeons and your partner’s illness. There is no such connection.
Impact of your offending
24.Mr Aga made a victim impact statement on 24 October 2022. He says that he has nightmares about you and he tries not to shake in fear when he returns home at night. He explains that the effects of your attack on him continue to this day. He told his wife that Australia is a safe country before she came here and now she tells him she does not feel safe.
Objective gravity
25.In Meyers v The Queen[1] the Court of Appeal explained that ‘aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target is a former domestic partner or a person against whom some other grievance is held’.[2] Home invasions are terrifying for householders.[3] The maximum penalty of 25 years’ imprisonment reflects the seriousness.
[1] (2014) 44 VR 486.
[2] Ibid at [6].
[3] Hogarth v The Queen (2012) 37 VR 658 at [1].
26.The impact on Mr Aga of this offending is clear from his victim impact statement. His wife was asleep in the unit when you barged in.
27.The factors to be considered in relation to a particular case of aggravated burglary were explained by the Court of Appeal in Meyers.[4] Applying those factors to your case, a number of the aggravating circumstances that often accompany such cases are absent. You were not in company; you were unarmed; it was not late at night. On the other hand, your intention was to confront Mr Aga and there was a small degree of planning on your part as evidenced by the black zip ties in your possession. I emphasise that I have not taken this into account as aggravating your offending – there is no evidence of your intent in this regard.
[4] at [48].
28.The assault was brief although no doubt frightening for the victim. Other than some soreness, fortunately he suffered no injuries.
29.I assess your offending as towards the lower end of the range of objective seriousness.
Personal Circumstances
30.Your childhood and adolescence were marred by misfortune. You grew up with two sisters, a younger brother, and your two parents. Your father was a violent alcoholic and physically abused both you and your sister. Your mother was also an alcoholic and was similarly subjected to your father’s violence. Your parents separated when you were 18 years old, and you were forced to find your own accommodation and to fend for yourself.
31.You left school after completing year 10 and found work as a marine fitter and turner. You completed two and a half years of an apprenticeship but were unable to complete it after suffering a significant injury to your arm. You then completed a Personal Services Assistant certificate and moved into working as a hospital theatre technical assistant & patient services assistant, which you did for 12 years at a number of different hospitals.
32.You are not currently employed and are in receipt of a Centrelink benefit.
33.You have had one major previous relationship with Stacie Carter, who is the mother of your three children. Your relationship with Ms Carter ended due to your drinking and incidents of family violence. The two of you now have an amicable relationship, and share parenting responsibilities, seeing your children at least every fortnight.
34.As I noted earlier, your current partner Norma suffered a stroke in November 2021 the effects of which continue to this day. As a result, you care for her and perform the majority of the housework.
Mental Health
35.For the purposes of the plea you were assessed by Ms Alison Mynard, clinical psychologist. Ms Mynard prepared a report dated 29 October 2022.[5]
[5] Exhibit D1.
36.Ms Mynard diagnosed you with Complex PTSD, Social Anxiety Disorder, ADHD and Alcohol Dependence Disorder.
37.In relation to the present offending, you told Ms Mynard that you went to the victim’s house to confront him because you were convinced that a tick from one of his pigeons caused the facial infection suffered by Norma that ultimately resulted in her suffering a stroke. You said that you were very angry that the vicitm flew pigeons. In hindsight you regret what you did and feel sick when you think about it. This is also what you said in your record of interview with the police and is consistent with what witnesses heard you say on the day.
38.Ms Mynard reports that your insight about your offending is high and you expressed remorse to her about your offending.[6]
[6] Ex D1 at [33].
39.Ms Mynard opines that there were a number of mental health issues that impacted on your behaviour at the time of the offending. Your ADHD ‘meant that [your] impulsivity was unchecked, and [you] acted without thinking of the consequences, and out of impulses and anger with the victim’.[7] With your partner Norma in hospital your anxiety increased and this in turn lead to ‘more erratic and impulsive behaviours, not thinking clearly about [your] actions, with poor judgment, clouded by your racing thoughts’.[8]
[7] Ex D1 at [62].
[8] Ex D1 at [63].
Criminal history
40.You have a history of prior convictions dating back to 1998. Some of the offending involved violence. For example, you were sentenced for assault with a weapon once in 2012 and twice in 2016. In 2020, you were convicted and sentenced to a CCO for contravening a family violence intervention order and recklessly causing injury.
41.You have been on four previous community-based orders and you have a current breach action pending which I am informed is to be heard by the Magistrates’ Court on 26 January 2023.
Prospects of rehabilitation
42.You have struggled with alcohol addiction for many years. As recently as October of this year, you have been through an alcohol detox. To your credit, you self-referred to Odyssey House in Werribee. According to a letter dated 2 November 2022 from Mr Do, the Care and Recovery Co-ordinator, you have ‘been actively engaging with the service’.[9]
[9] Exhibit D6.
43.As Ms Mynard observes, your risk of recidivism is affected by whether you control your alcohol and cannabis use.
44.On a more positive note, you have the support of your current partner Norma and her need for your help is a motivating consideration for you.[10] Your former partner and mother of your children, Ms Carter has informed the court that you have made significant improvements in your life in the last 6 months and you have been discussing increasing arrangements to a 50/50 split for the care of the three young children.[11]
[10] See Letter from Norma Astrid Braun (Exhibit D5).
[11] Letter dated 7 November 2022 from Stacie Carter (Exhibit D7).
45.Given your prior criminal history, the pending breach proceeding, your assessment by Corrections as a high risk of general offending[12] and your personal circumstances, I consider that you have reasonable prospects of rehabilitation at best.
[12] Community Correction Order Assessment Outcome Report dated 9 November 2022, p 2.
Moral culpability - Verdins
46.It is well established that an offender’s culpability may be diminished due to the effect of a mental disorder from which they suffer. In Verdins v The Queen,[13] the Court of Appeal explained that impaired mental functioning ‘may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.
[13] (2007) 16 VR 269 at [32].
47.In such a situation, the condition will affect the punishment that is just in all the circumstances, and ‘denunciation is less likely to be a relevant sentencing objective’. The impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. This means that it must be established that the offender’s disablement had the effect of ‘impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices, or to think clearly at the time of the offence’.[14]
[14] Romero v The Queen [2011] VSCA 258 at [13].
48.Where the principles in Verdins apply, not only will the moral culpability of the offender be reduced, but the mental health condition may have a bearing on the kind of sentence that is imposed.[15] Further, depending on the nature and severity of the symptoms exhibited by the offender, both specific and general deterrence may need to be moderated or even eliminated as sentencing considerations.[16]
[15] Verdins v The Queen (2007) 16 VR 269 at [32], limb 2.
[16] Ibid at [32], limbs 3 and 4.
49.The Verdins principles are and should be regarded as ‘exceptional’.[17] It is for the offender to establish on the balance of probabilities the facts that enliven the Verdins principles. This will normally be done by calling expert evidence which ‘must be ‘rigorously scrutinised’.[18]
[17] Charles v R [2011] VSCA 399 at [162].
[18] Brown v The Queen (2020) 62 VR 491 at [6].
50.Your counsel submitted that ‘principle 1 of Verdins is enlivened and there should be some moderate reduction in [your] moral culpability’.[19] The prosecution agreed that limb 1 of Verdins is enlivened.[20]
[19] Defence Outline of Plea Submissions dated 31 October 2022 at [31].
[20] Pros subs at [18].
51.In the unusual circumstances of your case, I accept the submissions of the parties in this regard. The evidence of Ms Mynard, considered together with the evidence of your state of mind on the day of the offending, establishes to my satisfaction that your mental impairment impaired your ability ‘to exercise appropriate judgment’ and impaired your ability ‘to make calm and rational choices, or to think clearly at the time of the offence’.[21] Your moral culpability is accordingly reduced to a moderate degree.
[21] Romero v The Queen [2011] VSCA 258 at [13].
Current sentencing practices
52.The prosecutor submitted that most offenders receive custodial sentences for the offence of aggravated burglary while noting that such statistics are of only very limited utility.
53.Your counsel drew my attention to the case of Bradshaw v The Queen[22] in which the Court of Appeal imposed a Community Correction Order in a case of a confrontational aggravated burglary. The sentencing judge had referred to Hogarth and Meyers and concluded that a sentence of imprisonment was required. Because the offender was 18 at the time of the offence, the Court of Appeal considered his rehabilitation was a very important sentencing consideration that justified a stand-alone community-based disposition.
[22] [2017] VSCA 273.
54.Annexed to the decision in Bradshaw are two tables of cases where offenders who had committed aggravated burglaries were sentenced to CCOs.[23] I note that in nearly all of these cases, the offenders were either young or had no or limited prior convictions or had not previously been sentenced to community-based sentences or some combination of these.
[23] at pp 25-32.
Matters in mitigation
55.You pleaded guilty at an early opportunity and this has a high utilitarian value as it saves the victim from giving evidence as well as saving court time. This is especially important given the pandemic caused backlog in this court.[24]
[24] Worboyes v The Queen [2021] VSCA 169.
56.You made full admissions to police and I accept that you are genuinely remorseful for your offending.
Submissions
57.Your counsel submitted that ‘an onerous and carefully structured CCO with community work and therapeutic components has the capacity to meet all relevant sentencing purposes and affords the best prospects of rehabilitation’.[25]
[25] Defence Outline of Plea Submissions dated 31 October 2022 at [34].
58.The prosecution submitted that the objective seriousness of the offending and the need to address deterrence requires a custodial sentence but a combination sentence is open to the court.[26]
[26] Prosecution Outline of Sentencing Submissions dated 7 November 2022 at [24].
Consideration
59.The relevant sentencing considerations are deterrence both general and specific, just punishment, community protection and promoting your rehabilitation.
60.Your history of offending means that you need to be deterred from any further offending. However, I accept that this need is moderated by the very unusual circumstances of the case which are unlikely to be repeated.
61.Further, your reduced moral culpability as a result of the application to you of the Verdins principles, means that the need to give effect to both general and specific deterrence is moderated.
62.I must take into account the maximum penalty for the offences of aggravated burglary and assault and the effect your offending had and continues to have on the victim.
63.I must comply with the statutory mandate that a sentence of imprisonment should only be imposed where the applicable sentencing purposes cannot be achieved by a non-custodial sentence.[27]
[27] Sentencing Act 1991 (Vic) s 5(4)
64.Finally, I need to impose a sentence that best facilitates your rehabilitation.
65.As has been observed before, these sentencing considerations pull in opposite directions – some requiring a custodial sentence and some pointing towards a sentence to be served in the community. On balance, I accept the submission of the prosecution that the sentence that best meets the various objectives in your case is a combination of a sentence of imprisonment to be served immediately to be followed by an 18-month CCO. Your prior history indicates that you have not been deterred from violent offending by sentences served in the community alone. You have been given several chances.
66.This offending is too serious for a straight CCO. As the Court of Appeal recognised earlier this week, the punitive effects of a CCO cannot be compared to a jail sentence.[28]
[28] DPP v Reynolds [2022] VSCA 263 at [46].
67.You have been assessed as suitable for a CCO.
Orders
68.On charge 1, aggravated burglary and charge 2, assault you are sentenced to 9 months’ imprisonment to be followed by an 18 month CCO with the following conditions:
a.You are to perform 120 hours of unpaid community work;
b.A treatment and rehabilitation condition for alcohol;
c.A treatment and rehabilitation condition for programs to reduce reoffending; and
d.A supervision condition.
69.Although Corrections Victoria recommended a mental health condition, I note that the Court Mental Health Advice and Response Service does not consider that you require ongoing evaluation or treatment of your mental health to be court mandated.[29] I have therefore not imposed such a condition.
[29] Report of MHARS dated 15 November 2022, p 1.
70.40 hours satisfactorily undertaken of rehabilitation or treatment are to count against the unpaid work requirement.[30]
[30] Sentencing Act 1991 (Vic) s 48CA(2).
In addition to the conditions I have imposed there are several standard conditions. First and foremost you must not commit any other offences punishable by imprisonment during the 18 month order. You must report within two working days to the nearest community corrections office. You are required to advise your supervising corrections office of any change of address where you are living or working and you must do so within two clear working days of your release. It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising Corrections office.
The order can be breached if you do not comply with either the conditions of the order or if you re-offend whilst it is in place. If you do, you will have to come back in front of me for breaching the order. I may have to resentence you for this offending, and I may have to sentence you for breaching the order which may involve further time in custody.
73.I can’t impose a CCO on you unless you agree. Mr Potter, do you agree to comply with the CCO I have proposed?
74.OFFENDER: I do, your Honour.
75.HIS HONOUR: I make the disposal order sought by the prosecution noting it is unopposed.
76.Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a term of 13 months’ imprisonment with an 18 month CCO to follow.
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