Director of Public Prosecutions v Rogers (a pseudonym)

[2019] VCC 2207

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM ROGERS (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	17 December 2019
DATE OF SENTENCE:	17 December 2019
CASE MAY BE CITED AS:	DPP v Rogers (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2207

REASONS FOR SENTENCE
---

Subject: Sentence – aggravated burglary – assault – context of relationship breakdown and breach of intervention orders by complainant – voluntary post-offence engagement with mental health services and behavioural program – previous good character – very good prospects of rehabilitation – early plea of guilty – community correction order

Catchwords:              
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Criminal Lawyers Geelong

HER HONOUR:

1Malcolm Rogers,[1] you have pleaded guilty to one charge of aggravated burglary and to one of unlawful assault with a weapon, namely a cricket bat.

[1]A pseudonym.

2Both offences arose out of an incident that occurred on 16 December last year.  That was about 10 days after the relationship you had with your partner of two years, Emily Sharp,[2] had formally come to an end.

[2]A pseudonym.

3Before the relationship had finally come to an end, you had obtained a family violence intervention order against Ms Sharp.  By that order she was precluded from committing offences of family violence against you or damaging your property.

4You had, in the months before the offences that gave rise to the charges you now face and have pleaded guilty to, on a number of occasions reported to the police what you alleged to be breaches of the intervention order by Ms Sharp and you perceived that the police had not taken your reports of breaches seriously or taken sufficient steps to protect you. I am not in a position to make findings as to whether that is so or not and it is not necessary to do so for the purposes of sentencing.

5The fact remains that on 16 December you were a person, an affected family member, who was entitled to the protection of an intervention order, which prevented Ms Sharp from committing acts of family violence on you or damaging your property. The intervention order also included exclusion and contact conditions, which meant that Ms Sharp was not supposed to contact you.

6Despite this, on 16 December, it would appear that she did contact you and did so a number of occasions by sending you text messages.  You ultimately, at about 5.30pm on that same day, went to the house where she lived, along with her four year old daughter, and began yelling abuse at her using offensive and abusive language.  She told you to leave and you did.

7You went back to her house about half an hour later at 6pm.  You were then armed with a cricket bat. You approached the locked screen door, again addressing her in deeply offensive language and demanded to be let in.  She refused.  You showed her the cricket bat, told her you were serious and again demanded to be let in.  You then began hitting the door with the cricket bat, damaging it and, as a result, obtained entry to the house. You entered the house, still with the bat, and said in what you acknowledge to be a rage, 'What are you going to do?  I've got you now'.  Again, you used deeply offensive language.

8A neighbour heard the yelling, came in and saw you standing in front of
Ms Sharp holding the cricket bat with both hands ready to swing. The neighbour placed himself between you and Ms Sharp in order to protect her.  You went out of the house to the back of the house and hit the side of the house so hard that you broke the cricket bat. The neighbour calmed you down and drove you home.

9It is as a result of that that you have pleaded guilty to a charge of aggravated burglary by going to the house and breaking in with a cricket bat and to the related summary offence of assault with a weapon. The assault with a weapon in the circumstances is the threat, as no actual contact striking occurred.

10You were arrested and interviewed the following day. You said that you had been receiving phone messages from Ms Sharp in breach of the intervention order designed to protect you and you said that you lost it with anger.  You told the police you were in a rage.  You admitted going to the address with the cricket bat.  You said your intention was to scare her and to tell her to back off.

11You denied causing the damage to the door that had enabled you ultimately to obtain access to the house after you had struck it.  You denied using the bat to physically assault Ms Sharp but you acknowledge hitting the bat against the outside of the house and that it had broken.  You told police you had been drinking.  You said you had two glasses of red wine beforehand and you acknowledge that you wanted to intimidate Ms Sharp to stop everything.

12You were charged and almost immediately entered upon negotiations to resolve the matter. The first committal mention was adjourned so the discussions could continue.  By 21 June 2019, the matter had been resolved by you, indicating you intended to plead guilty to the aggravated burglary and unlawful assault charges, and you were committed to this court for a guilty plea.  It is clearly an early plea of guilty and the sentence should reflect the fact that you were the one who embarked upon the negotiations and you did so before the first committal mention. The plea of guilty also has significant utilitarian value as well as significant value in sparing Ms Sharp the ordeal of anticipating a proceeding, having to be cross-examined and having to relive the matters.

13Subsequently, Ms Sharp obtained an intervention order where she was the affected family member preventing your from engaging in acts of family violence or damaging her property. And you subsequently were charged with a breach of that intervention order and have been dealt with by the Magistrates' Court for that. That breach offending occurred within a month of this offending.

14Whilst that does not aggravate this offending or increase the punishment to be imposed upon you for this, it is a relevant surrounding circumstance and I mention it now because it is relevant to the assessment of your prospects for rehabilitation and the assessment of your remorse.

15It is clear that the offences for which I come to sentence you, the aggravated burglary and the unlawful assault, are serious and are offences that deserve condemnation, denunciation and must be dealt with in a way that acts, not only as a marker of the seriousness and the denunciation that properly should flow from such behaviour, but also acts a deterrent to anybody considering that this is an acceptable way to act.

16Family violence is pernicious and pervasive.  It is the reality of life in our society that relationships do not always work out, come to an end and people split up.  We as a society should expect that people who have been in a relationship that does not last or that break-ups should accept that relationships come to an end and move on. If a relationship has been sufficient to have people live together, make a commitment to each other, express love for each other, those are the feelings that should endure after the relationship has comes to an end and respect for the fundamental dignity of the people involved must be maintained. It is simply unacceptable at the end of a relationship to engage in abusive behaviour, whether it is emotional, verbal or physical. And a person, a mature adult in his late 30s, as you were at the time of this offending, should be expected to act in a mature and respectful manner at the end of a relationship and not to engage in the sort of behaviour that you did, even if, as happened here, you were not the only person who was entitled to the protection of a family violence intervention order.

17That you responded to Ms Sharp’ text messages on this day with physical threats and breaking into the house was a significant escalation that deserves condemnation and is one of the reasons why the sentence must act as a deterrent to anybody who thinks that it is acceptable, in the aftermath of a broken relationship and in response to verbal threats, to respond in the physically violent way in which you did.  So it is clear that general deterrence is a significant factor.

18One of the matters then relied on, on your behalf, is that you come before the court as a man now of 38 who has not previously been in any trouble and, apart from that one subsequent matter, the breach of the intervention order that occurred within a month of this, you have not been before the court before or since.

19You have a good history of employment, of community engagement through football, both as a player and a coach. You are obviously well supported by your mother and your extended family and, until this, you also had a history of a generally stable and law-abiding life.

20I was told that this offending arose in the context, not only of the end of the two year relationship with Ms Sharp, but that itself had come about at the end of a 16 year relationship with your former wife and the mother of your nine year old son.  You had been deeply distressed by the breakup of the marriage and had felt as if you had been devalued and disempowered during the marriage and your sense of self and the stability that you had from being a person in a long term relationship, the father of a child, working and being engaged in your community, seems to have disappeared at that time.

21I was told that, in the aftermath of the breakup of your marriage, you had first sought help from mental health agencies, had a period of depression for which you had been treated and had appeared to be improving and looking forward to a more stable future at the time that you embarked upon the relationship with Ms Sharp.

22You had moved from Shepparton, where you had always lived and where you had brought up your child, to Geelong because your former wife had come back to Geelong to live with her family following the breakup of your relationship and you wanted to be close to your son.  Your unhappiness about the end of the relationship with your wife, what turned out to be a disintegrating relationship with Mr Sharp after it had started so promisingly and difficulties arising in relation to contact with your son, all seem to have combined to create a particular time of instability in your life. Coupled with that, the move to Geelong had left you without the support of your family and extended social circle in Shepparton.  Football playing and coaching had been a significant part of your life and your deteriorating wellbeing and mental health had also led to your parting ways with the football club where you had been coaching, leaving you again without one of those significant stabilising features in your life.  All of that happening in the lead up to this offending.

23After you were charged with the second lot of offences involving Ms Sharp, you immediately sought mental health assistance from Goulburn Valley Health, because you by then had moved back to Shepparton and moved in again with your mother.

24A report from Dr Das, the consultant psychiatrist of Goulburn Valley Area Mental Health Service, indicated that you presented on 19 January, just days after the second charges, reporting low mood, suicidal ideation and not feeling safe and identified the multiple stressors that I have identified. As a result, you were reviewed by the acute response team at Goulburn Valley Health.  You were placed on both anti-anxiety and anti-depressant medication, and admitted to the Prevention and Recovery Care Unit (‘PARC’), where you remained as an inpatient for some weeks until your mood stabilised and your medication was stabilised. From then on you have been engaged with a general practitioner, mental health professionals and, most significantly, a men's behavioural change program.  Reports from all of those indicate that you have engaged positively and well with your treatment and that you are now back to a much more stable mental state.

25I was very impressed by the evidence you gave. You showed shame, remorse and considerable insight. Although the psychological report that had been prepared by the psychologist, Alison Minard, for the purpose of your plea had a flavour of victim blaming and self-pity, your evidence was one of acceptance of responsibility, of deep shame, of genuine remorse and regret and apology to those affected by your behaviour. You appeared to have learnt significantly from your engagement with the men's behaviour change program and from your engagement with mental health professionals.

26You have re-engaged in paid work. In fact, you have reconnected with the employer for whom you had worked for six years in Shepparton before you left there to come to Geelong. You have been working on a casual basis and have produced today a letter from that employer offering you full time employment from January of next year.

27So you appear to be prepared to remain living in Shepparton, again reconnected with the support your family can give you, with your old friendship circle and with your old employer and employment.

28This then indicates a number of very positive factors which, in combination, in my view, point to the unlikelihood of your reoffending in a like manner again and to the unlikelihood of your reoffending in any other manner.

29You have shown considerable insight into the deterioration of your mental health and what you needed to do to address that, both in terms of medication and engaging in counselling and show yourself amenable to that.  The combination of family support, re-engaging with employment and football, which has been such a significant part of your life, and the respectful way you now speak of Ms Sharp and her child, in my view, all point towards your prospects for rehabilitation being very good.

30I am more inclined to accept the opinion of Dr Das that, at the time you presented in January of this year, you were suffering from an adjustment disorder by reason of that combination of circumstances and the assessments made by Ms Minard.  But in any event it is not of great moment because it is clear that you are engaged with mental health professionals, are able to perceive when you are in need of help and that you have been accepting of help. Most significantly, you have completed the men's behavioural change program and that seems to have had a significant effect on you.

31I was also struck by the fact that you said that you had played football for 20 years, you had coached seniors for 10 years after that and you had been involved in coaching juniors for a considerable period. You have never been reported for violence and you have had a considerable role, obviously, as a player and a coach, both of adults and of young people in teaching appropriate ways of managing anger and temper on the field and off it.  Again that points to this being an aberration at a volatile and difficult time of your life, one that you see as something shameful rather than something that you are seeking to justify or excuse, and one that sits in stark contrast to the evidence of the way you have lived your life otherwise.

32When I first read these materials, I was of the view that, because of the context of family violence, your behaviour on this day and of what appeared to be an unwillingness on the materials that had initially been filed for you to accept responsibility for your behaviour but rather to blame others, it was likely that no sentence other than one involving a period of imprisonment, followed by a community correction order, would be appropriate.  Having heard the plea and in particular having heard your evidence and your insight since your offending behaviour, I am of the view that this is one of the outer edge cases where, despite the seriousness of the charge of aggravated burglary, the purposes of sentencing do not require the imposition of a term of imprisonment before requiring you to serve a community correction order.

33It is clear that there is a small category of cases of aggravated burglary where it is within the appropriate sentencing range to punish it by a sentence that does not require the imposition of a term of imprisonment, and of course I am mindful of the fact that I cannot impose a term of imprisonment unless I am satisfied that no other sentencing is appropriate in the circumstances. You are entitled to the benefit of 37 years of not having offended and 37 years of not ever having been reported or sent off in football. You are entitled to the benefit of a good and law-abiding life before then and since January of this year. And, in my view, the proper purposes of sentencing can all therefore be served by recording a conviction, which in itself is a significant punishment for someone who has got to the age of 38 without one, and releasing you on a community correction order.

34I had considered that conditions of engagement with mental health assessment and treatment and offending behaviour programs, particularly a men's behavioural change program, should be considered. The report of Corrections indicates that, because you have successfully completed a men's behaviour change program and that because you have been well engaged with mental health services and show an openness to and an ability to have insight into your own mental health, that neither of those conditions are necessary as additional conditions of an order.  Of course, as the report points out, under the general duty of care obligations under a community correction order and under the obligation to report to or receive visits from the Secretary and to obey all lawful instructions from and directions of the Secretary, if there are any concerns about your mental health you can still be directed to engage with mental health professionals.

35I therefore accept those recommendations and the only program condition that I will impose on the community correction order is one of unpaid community work. That has a significant punitive element obviously and it also allows you to demonstrate that you can put back into the community. But it does not require your removal from the community for any period, provided you abide by the conditions of the order.

36You have indicated in the assessment report provided to me that you understand your obligations under a community correction order and you have signed an acknowledgement that you are prepared to consent to an order being made, and so that is what I propose to do.

37Could you now please stand.

38Malcolm Rogers, on the charge of aggravated burglary and of unlawful assault, to which you have pleaded guilty, you are convicted.  You are to be placed on a community correction order for a period of 12 months, commencing on
17 December, that is today, and ending on 16 December 2020.

39There are mandatory terms that apply to all community correction orders.  They are, first, that you must not commit another offence for which you could be imprisoned during the time the order is in force.  That of course includes any breach of an intervention order.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend at Corrections for any appointments and you must submit to drug or alcohol testing if directed to do so.

40You must report to and receive visits from the Secretary or delegate. You must report to the community corrections centre at 307-331 Wyndham Street, Shepparton, within two clear working days after the commencement of this order. You must let a community correction officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.

41In addition to those mandatory conditions you are directed to perform 200 hours of unpaid community work over the period of 12 months as directed by the regional manager. If you fail to comply with the unpaid community work direction or provision, the Secretary or delegate can give you a direction to perform additional hours of unpaid community work in accordance with s 83A(u) of the Sentencing Act.

42Do you understand the effect and conditions of the order?

43OFFENDER:  Yes, your Honour.

44HER HONOUR:  Do you consent to it being made?

45OFFENDER:  Yes, your Honour.

46HER HONOUR:  All right, I will ask Mr Pearson to take that down to you.

47I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a term of imprisonment of six months, followed by release on a community correction order for a period of 12 months.

48I have been asked to make an order for the provision of a forensic sample. I forgot to ask you, Mr Pearson, what the attitude was to that?

49MR PEARSON:  Given the seriousness of the charge, your Honour, it's not opposed.

50HER HONOUR:  I propose to make that order, given the seriousness of the offending and noting that it is not opposed.

51I must inform you, Mr Rogers, that I am making the direction for that forensic sample by provision of a buccal sample.  That is the wiping of a swab on the inside of your mouth until a sufficient sample is obtained. If you do not cooperate in the provision of that sample than the police are authorised to use reasonable force and they are likely to use the more invasive means, namely the taking of a blood sample.  Do you understand that?

52OFFENDER:  Yes, your Honour.

53HER HONOUR:  There is a complicated time frame for your compliance with this order.  You must let the 28 days for appeal from this order expire and then within 28 days of that you must attend at the Shepparton police station to provide the sample.  Mr Pearson will explain that to you again.

54Could you now take the community correction order down please to Mr Rogers.

55MR PEARSON:  Your Honour might see that his signature's a bit shaky.  He is a bit emotional at the moment, but he has signed the order, your Honour, and consents to the order being made.

56HER HONOUR:  Thank you.  All right, I have countersigned that.  You can take a seat again, Mr Rogers.  A copy of that community correction order needs to be made and provided to you and once that has been copied and provided to you, you will be free to leave.

57OFFENDER:  Thank you.

58HER HONOUR:  All right. They are the only orders that are required to be made.

59MS HARPER:  Yes, your Honour.

60HER HONOUR:  All right, thank you.

61MR PEARSON:  Thank you, your Honour.

‑ ‑ ‑