Director of Public Prosecutions v Rose

[2024] VCC 668

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01478
CR-22-01477

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN ROSE
RAYLENE LAGERWEY

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2024
DATE OF SENTENCE:	13 May 2024
CASE MAY BE CITED AS:	DPP v Rose & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 668

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW    

Catchwords:              aggravated burglary, recklessly causing injury, possess prohibited weapon (crossbow) - son and mother - serious example of offence – victim’s residence – children present – handbag dispute - plea of guilty at a mid-point in proceedings - utilitarian benefit – poverty – neglect - substance abuse – family violence - three years since date of offending - onerous bail – parentification - distorted mother-son attachment - limited prior criminal history.

Legislation Cited:      Crimes Act 1958, Sentencing Act 1991.

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43, [34]-[40] ; Verdins, Buckley and Vo [2007] 16 VR 240; DPP v Meyers (2014) 44 VR 486 [48].

Sentence:                   Mr Rose: Total effective sentence: 2 years imprisonment, 12-month non-parole period, 50 days pre-sentence detention, reckoned as served. 6AAA disposition 3 years imprisonment.

Ms Lagerwey: 70 days imprisonment (time already served), 2-year Community Corrections Order. 6AAA disposition 1 year 9 months imprisonment.         

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G. Mohammed	Office of Public Prosecutions
For the Offender Rose For the Offender Lagerwey	Mr R. Melasecca Ms A. Hurst	MKZ Criminal Law Geelong Lawyers

HER HONOUR:

Introduction

1Justin Rose, you have pleaded guilty to an indictment containing two charges, one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment or 3,000 penalty units, and one charge of recklessly causing injury, which carries a maximum penalty of five years’ imprisonment or 600 penalty units.  A related Summary Charge of possess prohibited weapon (crossbow), which carries a maximum penalty of two years’ imprisonment or 240 penalty units, was uplifted into the hearing of the plea in mitigation of penalty, and you provided your consent to my hearing that charge, and you pleaded guilty to it.

2Raylene Lagerwey, you have also pleaded guilty to Mr Rose’s first charge, that is, of aggravated burglary, which similarly carries a maximum penalty of 25 years’ imprisonment.

3The circumstances in which you each came to commit those offences are set out in the Summary of Prosecution Opening for Plea dated 22 August 2023, which was received into evidence as Exhibit A on your plea.  The prosecution also relied upon:

·        extracts from the depositions with photographs of injury and medical records (Exhibit B);

·        amended outline of Crown submissions on plea dated 26 March 2024 (Exhibit C).

4Ms Lagerwey, in respect of your matter, I received a community correction order assessment outcome report dated 14 February 2024 with attached mental health advice and response service report, which I have received and marked as Exhibit D; and Mr Rose, in respect of your case, I have received a community correction order assessment outcome report and attached mental health advice and response service report, which I will now receive and mark as Exhibit E.

5Mr Rose, in addition to the matters developed in oral argument, your counsel relied on the following exhibited written documents:

·        plea submissions (Exhibit 1);

·        psychological report of Dr Luke Armstrong dated 18 August 2023 (Exhibit 2);

·        forensic drug and alcohol assessment report dated 10 March 2021 (Exhibit 3);

·        CISP documents (Exhibit 4);

·        bundle of references (Exhibit 5);

·        

response to prosecution submissions on behalf of Justin Rose dated

20 March 2024 (Exhibit 11).

6Ms Lagerwey, in addition to the matters developed in oral argument, your counsel relied on:

·        defence submissions for plea dated 9 February 2024 (Exhibit 6);

·        psychological report prepared by Carla Lechner dated 1 February 2023 (Exhibit 7);

·        bundle of references (Exhibits 8 and 9);

·        bundle of medical documents (Exhibit 10).

7I have also very helpfully been provided with cases by each of your counsel, which assist me to understand the propositions and principles of law that I must apply in the determination of appropriate sentences in each of your cases.  I have had regard to all exhibited documents, as well as to the matters developed in the several days of oral argument.

Circumstances of your offending

8At the time of your offending, which occurred on 1 January 2021, you, Mr Rose, were aged 24; you, Ms Lagerwey, were aged 48.  The two of you are son and mother, and you were both residing at an address in Chaffey Square, in Corio.

9Two of your victims, Tanya Patmore and Christopher Hayes, were residing nearby, also in Chaffey Square, Corio.  You were each known to one another as neighbours.

10

On 31 December 2020, the two victims that I have named, together with

Ms Patmore’s sister Kerrie, and Sky Lee Hills, who was in a relationship with

Mr Hayes’ brother, were celebrating New Year’s Eve at Ms Patmore and Mr Hayes' address.

11Mr Rose, you left your premises at around lunchtime, telling your father that you were going to a party; you, Ms Lagerwey, remained at home.

12Early in the hours of 1 January 2021, you, Ms Lagerwey, contacted your former partner in Norlane, and then between 12.40 am and 1.30 am, you knocked on the front door of the victims’ residence.  Kerrie Patmore answered the door, and found you, Ms Lagerwey, very intoxicated.  Ms Lagerwey, you asked Kerrie Patmore if a taxi had arrived for you, and Ms Patmore told you that it had come earlier but had left, and she offered you a lift to Norlane.

13

She drove you, Ms Lagerwey, to an address in Finch Street, Norlane, and I understand that Ms Hills was also present and was seated in the back seat of the vehicle.  The journey to Norlane may have involved an intention in you,

Ms Lagerwey, to visit to use drugs.

14Ms Patmore dropped you, Ms Lagerwey, off in front of the house in Finch Street,

Norlane, and you, Ms Lagerwey, went inside, leaving your handbag inside the vehicle; you told the two of them to wait for you; however, they threw your bag onto the nature strip and drove back towards the address in Corio.

15A short time later, you, Ms Lagerwey, returned to the Chaffey Square, Corio address, and you were dropped off in an unknown vehicle.  You, Ms Lagerwey, approached Kerrie Patmore outside the victims’ residence, and it is alleged that you pushed Ms Patmore and said, 'Where’s my fucking bag?',  It is then alleged that you said words to the effect of, 'You’re all fucked,' 'I’m going to get my son and come back and smash up your house and cars,' before you left.

16I interpolate that I have included these facts as background to the following offending.

17A short time later, it is alleged that a Commodore sedan arrived and parked outside your residence, and several unidentified men got out of that car, walked over to the victims’ residence and began smashing windows down the side of the house.  I understand that the prosecution contend that this event is also contextual to the offending.

18Mr Rose, you arrived at the victims’ residence at approximately the same time as the unidentified men, holding a baseball bat.  At the point of entry, you intended to cause fear to a person inside, and you knew or were reckless that a person was then present inside the house.  This is the offending referable to your charge of aggravated burglary.  Ms Lagerwey, you accompanied your son, and at the point of entry as a trespasser, you also intended to cause fear through those actions, and you knew that a person was present inside the house, or were reckless as to whether or not a person was then so present.

19HER HONOUR:  Thank you.  At the time that you entered the premises, Christopher Hayes and Tanya Patmore were inside the house, and there were also six young children present and asleep.  Mr Hayes saw you, Mr Rose, inside his home, and asked you, 'What the fuck are you doing here, get the fuck out of my house,' at which point you attacked him using the baseball bat.  As a result of this attack, you caused him injury.  This is the offending referable to your Charge 2, of causing injury recklessly.  The unidentified males by this time had gained entry inside the victims’ house, and then they joined the attack on Mr Hayes, using bats and poles.  However, the prosecution does not allege that either of you was complicit with the actions of the unidentified offenders.

20Ms Lagerwey, after the commission of your offence, and in the same short space of time, it is alleged that you grabbed Ms Patmore by the hair and tried to rip her phone from her hand as she tried to phone police, at which time she told you, 'get out, I have six kids.'

21At some point thereafter, the two of you left, as did the unknown males.

22Mr Hayes was conveyed to the Geelong Hospital and was treated for bruising and swelling to the face and mouth region, a nasal bone fracture and bruising, and swelling to his left wrist.  I am unable to identify and separate the injuries caused by you, Mr Rose, in consequence of your Charge 2, of causing injury recklessly as you did with the baseball bat, vis-a-vis the injuries caused by the unidentified males, and I do not purport to do so.  By your plea, you do accept causing him injury with the bat, with the foresight of injury as being a probable consequence.

Investigation, arrest and interview

23Later that day, police examined, photographed and seized items from the crime scene, and then a search warrant was executed at your home address.

24Ms Lagerwey, you were arrested at the scene and were conveyed to the Geelong police station for interview, and you told police, correctly, that you were given a lift to your former boyfriend’s house by girls associated with the address across the road, that you had gone inside briefly, and that when you came back out, they were gone and so was your bag.  You told police correctly, that you returned to their address and had a verbal dispute with the residents, though you falsely told police that that took place out the front, and then you went home.  You told police that the alleged incident inside the address did not happen, and you denied pushing anyone making any phone calls.

25Mr Rose, you were interviewed by police on 1 January 2021 and gave a largely 'no comment' interview, as is your right.

26At the time that police arrested you, Mr Rose, a search of your caravan at your home address took place and a crossbow was located by police.  This is the offending referable to your related summary charge where a crossbow was found by police.

27At that point I will interpolate effect on the victim.  Whilst I do not have the benefit of a victim impact statement or statements in this matter, I infer that the aggravated burglary would have been a profoundly distressing and frightening event to the occupants of the home and that you, Mr Rose, then went on to cause Mr Hayes' injury.

Plea of guilty and timing

28

You were each charged on the day of your offending, that is, 1 January 2021, and were remanded into custody.  Mr Rose, bail was granted in your case on

19 February 2021, after 50 days on remand; and Ms Lagerwey, bail was granted on 11 March 2021, after you spent 70 days on remand.  The matter proceeded through committal hearing in the Magistrates’ Court, with civilian and police witnesses cross-examined; and you were each committed on a plea of not guilty on 17 August 2022. 

29The matter proceeded through a list of directions hearings and a case assessment hearing in this court, and resolved on 1 May 2023 with you each arraigned on the proceeding charges.  This is a plea of guilty from each of you at a mid-point in proceedings, however, well prior to the court taking the opportunity to list the matter for trial, and that has saved the court and the community the time and expense of a trial, and it has avoided the need for civilian and police witnesses to incur the time and often the stress of needing to give evidence in court before a jury.  Furthermore, your pleas of guilty were entered at a point where the unfortunate effects of the COVID-19 pandemic continued to linger upon the listing of trials, and there was accordingly significant utilitarian benefit in your pleas, which I take into account in significant mitigation of sentence. I also find that each of those pleas are accompanied by remorse, which I also take into account.

30I note and take into account, also in mitigation of sentence, that a period well in excess of three years has passed between the date of commission of your offences and the date of imposition of a sentence, and the matters have been hanging over each of your heads during that considerable period of time.  In other words, I accept and take into account in mitigation of sentence, as each of your counsel has submitted, that delay is a very significant matter in sentencing.

Personal circumstances

31Mr Rose, as I have mentioned at the time of your offending you were 24 years of age and you are now 27.  You were born in Melbourne and your parents separated within 12 months of your birth.  Your relationship with your birth father remains distant, and I am told that your father now lives in Queensland.  You have seen him approximately once per year for the last 20 or so years, and he was certainly not involved in your day-to-day care at any point.

32You were raised primarily by your mother, now your co-accused, and occasionally your grandmother.

33Unfortunately, your childhood was defined by poverty and limited opportunity.  Your mother struggled with addiction, which has affected her care of you from an early age.  You lived in housing commission environments in Melbourne, and attended approximately six schools as a result of unstable accommodation.  Your mother experienced turbulent relationships, and relationship breakdowns necessitated moves.  I was told that your schooling was affected by your inability to concentrate, and your engagement in disruptive behaviour.

34Whilst you understand that your mother tried her best in her care of you, you occasionally came across drug paraphernalia as a young child.  You were exposed to domestic violence, in that on several occasions you witnessed your mother being assaulted by her partners, and felt that you ought to intervene, which would occasionally lead to you being assaulted.

35At the age of 11, your family moved to Corio via a DHHS approved house transfer, the house in Corio was barely fit for habitation, and you lived at your grandmother's until it was fixed.  You completed your schooling at Corio Primary School, which you found very difficult as you struggled to integrate.  Fortunately, this introduced a period of relative stability into your life in some respects, in that you joined the local football team, and your mother’s life stabilised, in that she got a job as cleaner which has led to continued employment ever since.

36

You attended Norlane Secondary School, and left school partway through

Year 11.

37At the age of 14 you started drinking alcohol, frequently to excess, often leading to blackout.  You started using cannabis at the age of 15.

38After you left school, you commenced an apprenticeship as a baker, and you qualified as a baker in your later teenage years.  At this time your cannabis use escalated to daily use, used in part to help you sleep and calm you down.

39You have reported to Luke Armstrong, consultant psychologist, that you have struggled to regulate extremes in your moods, which would often lead to occasions where you would punch holes in walls or doors.  Within a context of frequent alcohol binges, you consider yourself more prone to physical altercations when affected by alcohol.

40After you qualified as a baker, you then commenced a carpentry apprenticeship, where you remained for three months, and then you quit the apprenticeship in the aftermath of the breakdown of a long-term relationship at around the age of 22.  At this point, you report losing all motivation to work, and your lifestyle escalated to polysubstance abuse, including the use of speed, cocaine and ecstasy, which escalated to daily use.  You did not work for 12 months.

41You then attempted to return to work by engaging in roofing full-time, which lasted 12 months, but coincided with continued daily polydrug use.  You then entered bricklaying, but experienced a significant leg injury, which led to you being unable to walk for a month, and then you became addicted to Benzodiazepine within this context.  The injury occurred in early 2020, and for the rest of the year in the context of the COVID-19 pandemic you were unemployed.

42This is the backdrop to and chronology leading to your offending on 1 January 2021.

43

After you spent 50 days on remand, you were bailed to your nan’s house, and whilst you described her as 'very strict', you continued to drink to excess, up to 20 standard drinks every alternate day.  More recently, you have reported to

Mr Armstrong that you decreased drinking, to 10 standard drinks approximately once per month.

44You have a limited prior criminal history, comprising only a single court appearance in the Brisbane Magistrates’ Court in November 2015, where upon a finding of guilt for unlawful possession, you were released on a good behaviour bond.  I have the benefit of a significant number of character references tendered on your behalf, with a significant number of authors called upon to supplement their reference.  Your work colleagues and friends describe you as a fantastic employee, a person who is willing to lend a helping hand, a person who has infectious optimism, a person who continues to grow in maturity, a polite and respectful young man, a team player, a caring and loving family member, and a person who is maturing from setbacks in early life and adolescence, who is demonstrating a growing understanding of his worth and his capacity to contribute to society.

45You have engaged positively with the support services offered in the CISP component of your onerous bail, and you have demonstrated insight and understanding that your problematic alcohol and drug consumption emphasised negative character traits, that, it has been submitted, do not sit comfortably with what I find to be your inherent and overall good character.

46Mr Armstrong undertook a psychological assessment of you and supplemented the report to which I have referred with oral evidence.  He administered relevant empirical testing as part of his analysis.  He diagnoses you as suffering features of a borderline personality disorder, including an extreme sense of abandonment; and compartmentalised emotions periodically leading to explosions and problems with inappropriate intense anger or difficulty controlling anger, and affective instability due to marked reactivity of mood.  In his view, you developed a stimulant and probable anxiolytic use disorder from around 21 years of age, as well as a cannabis use disorder at an earlier time, and he considers you an alcoholic.

47

As a result of the history of neglect and abuse that you have described, in

Mr Armstrong’s view, you have come to view yourself as the protector of your mother from a young age, which he terms parentification.  He considers that you have a distorted mother-son attachment, and have a fundamental urge to protect your mother in circumstances as you perceive them at a time.

48I will indicate that I understand and accept Mr Armstrong’s diagnosis of you as experiencing borderline personality disorder, with the additional psychological setback of parentification, having regard to the poverty, neglect, and exposure to the milieu of drug use, and domestic violence as you were.  In my view, your traumatic background mitigates the sentence which would otherwise be appropriate.  Consistent with the reasoning of the High Court in Bugmy v The Queen,[1] the effects of a traumatic childhood do not diminish over time and they are to be given full weight in the determination of appropriate sentences in every case.

[1](2013) 249 CLR 571.

49Furthermore, I consider that the offending occurred when you were still a young person, aged 24, with a mostly limited criminal history, which I also take into account in mitigation of sentence, and at a point in your life where you felt rudderless by reason of your lack of connection to employment, and your associated descent into polysubstance abuse and alcohol abuse.

50Mr Armstrong, in my view valiantly, endeavoured to connect his observations of your parentified state with the circumstances of alleged offending.  At this point, his analysis of the circumstances as presented to him, and my analysis of the facts as I find them on the state of the evidence, necessarily differ somewhat.

51I accept, as you told Mr Armstrong, that on the relevant evening, you had consumed alcohol to gross excess (a litre of spirits as you told him), and had consumed cannabis with Benzodiazepines also as you told him.  I understand that you were told by your mother in effect that she had lost her handbag, perhaps as a result of the victims’ actions, as this is what she had told police she believed, and that she required your assistance in some way, which I can infer from the statement she made to the victims before she left their house, i.e. that she was to summon you and return.

52Here, Mr Armstrong appeared to consider that notwithstanding the nearly two and a half years that had then passed between this event and his attendance upon you, and notwithstanding your consumption of alcohol and drugs to excess on that occasion, that you had a clear recollection of your mother informing you on the relevant evening that 'she had approached the victims to retrieve her handbag, however, had been verbally threatened and pushed to the ground'.  On the other hand I am unable to infer from the evidence that has been presented to me one way or another what your mother told you, including whether she complained, potentially falsely or truly, that she had been pushed to the ground, and it is utterly unclear whether she sought your assistance in respect of retrieving the handbag, or in engaging in violent action or threats as retribution, or some combination of the two.  This makes it more difficult for me to evaluate Mr Armstrong’s diagnosis of parentification as mitigating your offending, i.e. that you wished to act in purported defence of your mother, or, potentially of aggravating the offending, in that you wished to act in retribution for the difficulties that your mother had experienced.

53In other words, the label of parentification I consider as I understand the evidence to be context for your offending, rather than perhaps mitigating as was again perhaps urged upon me by your counsel, or indeed as aggravating, should I see this as motivation for what might otherwise be observed to be vigilantism, the latter which I intend to put to one side.

54You have told Mr Armstrong that you felt an overriding compulsion to protect your mother, in my view this was accompanied by some sense of compulsion perhaps to avenge your mother.

55Ultimately, however, you have shown yourself in the considerable period of time following to be a person who is not immediately vulnerable to recurrence, which I attribute to your onerous bail conditions, your increasing maturity and stability as evidenced by the positive references I have received on your behalf, your significant reduction in alcohol consumption (though I am still very concerned about your admitted frequent consumption of alcohol to excess, knowing as you do that it causes emotional volatility in you), and your evidenced participation in rehabilitation from your entrenched drug addiction.

56Mr Armstrong has noted that you take responsibility for your actions, and, as I have said, I consider that your plea is evidenced by remorse and some insight.

57Ms Lagerwey, you were 48 years of age at the time of your offending, and you are now 51.  You are the older of two children born to your parents; your parents separated when you were in your early twenties, and until this time you had been close to your father, but the closeness of that relationship ended when your father remarried.

58You remain close to your mother, and I had the benefit of receiving evidence in this matter from your mother, who has provided both you and your son with support.  Your co-accused Mr Rose is the younger of your two children, and you also have a daughter who is a year older than him.

59You attended St Peter’s Primary School in Epping from Prep to Grade 6, but you had difficulty concentrating and paying attention, and Ms Lechner, clinical psychologist, who has assessed you and who has provided me with a report in this matter considers your symptoms and behaviours from this period to be consistent with an undiagnosed and untreated ADHD condition that has persisted into adulthood.

60You attended Whittlesea Technical College until the completion of Year 9.

61You report a very enjoyable and stable family life, and you were devastated to learn of your father’s affair which ended the marriage, and indeed, your contact with him given your stepmother’s reluctance to allow that relationship to continue.

62After you left school, you worked at Kmart at Northland for about five years, and then at the Preston Market, and then after moving to Cairns at the age of about 19, you worked in a chicken bar, as a cleaner, and on a prawn trawler with the children’s father.  Your children were born 12 months apart, and you returned to Melbourne for family support at the age of about 24.

63

You have had three significant romantic relationships, but described them all as violent to Ms Lechner.  You experienced domestic abuse, both physical and psychological in nature.  You have moved home frequently and estimate that you have lived in 33 houses.  You have worked primarily in cleaning positions since moving to Geelong approximately 15 years ago, as I described in summarising

Mr Rose’s personal circumstances.

64Ms Lechner reports that you have used illicit substances, including cannabis, LSD, cocaine, amphetamines, and ice, generally infrequently, and you told her that you had a Valium and Serepax addiction in your twenties.  You told Ms Lechner that you mainly drink on weekends, but not to excess.  You reported that you were intoxicated at the time of the present offences.

65I have been told of two prior court appearances, including an appearance at the Magistrates’ Court in March 2003, for possess cannabis, and possess unregistered Category A longarm, in respect of each of which you were placed on a bond without conviction; and a charge of theft in March 2013, which led to another non-conviction bond.  At the time of your offending, you were largely of good character, and this offence represents a dramatic departure from a generally law-abiding life.

66Ms Lechner administered empirical testing, and concluded that you presented with symptoms of a likely adult ADHD condition, in addition to symptoms of an adjustment disorder with mixed depression and anxiety, reactive to workplace bullying, and this court hearing.

67You told Ms Lechner that on the evening of your offending, you had consumed 'too much alcohol,' which you estimated to be 'half a bottle of spirits.'  As you told police, you were concerned that the two women who had given you a lift on the evening had stolen your handbag, and you told Ms Lechner that had you not been intoxicated you would have handled the matter differently.

68I understand that you found your time on remand extremely challenging, at least in part based on the circumstances of isolation on account of the COVID-19 restrictions that were in place at the time due to the pandemic; and you also considered that the behaviour of other prisoners overwhelmed you and left you with ongoing experiences of anxiety, and potential terror at the prospect of being returned into custody as a result of the sentence that I am obliged to impose on you.

69Once you were bailed, your anxiety escalated, and you now struggle to go shopping and do chores in the community due to the increase in that anxiety since your time on remand.  Your mother is of considerable emotional support to you, and in return you are her carer.

70I am prepared to accept Ms Lechner’s observations of your difficulty coping whilst on remand, and the deterioration in your mental health that resulted after your release.  I consider that your time on remand weighed heavily upon you, and I am prepared to infer that imprisonment will weigh more heavily upon you than it would on a person without your personal circumstances, including your psychological presentation.[2]  I take this into account in mitigation of sentence, and as urged upon me, I have reflected carefully on whether there is another available sentence that satisfies all relevant purposes of sentencing aside from returning you to custody in respect of this offence.  

[2] Verdins, Buckley and Vo [2007] 16 VR 240

Objective gravity of your offending; moral culpability

71Mr Rose, Ms Lagerwey, on the evening in question you were each grossly intoxicated.  Ms Lagerwey, you reacted to the indifference with which the two women associated with the home of your victims had treated your handbag in an upset and disordered manner.  When you did not achieve satisfaction and the return of your handbag, which was apparently unbeknownst to you left at the location at which they had dropped you, you responded with a threat of retribution, by going to get your son and return, and you then provoked your son into this offending.

72Mr Rose, you were encouraged to offend by your mother, who had exposed you

to significant acts of violence in your formative years, and you were lured into acting in the unnecessary and disproportionate way in which you did as a result. At the time of your offending, you were both very intoxicated, which you each now recognise and know causes you to react in illogical, disproportionate, and violent ways.  This is especially so for you, Mr Rose, as it diminishes your capacity to make sensible decisions as to your psychological desire to protect your mother from emotional discomfort.

73The two of you entered the victims’ home with the intention to assault an occupant.  Mr Rose, you took with you a baseball bat which was immediately deployed on the occupant of the home, a person who has not been mentioned in any connection with your or Ms Lagerwey’s irritation with the missing handbag, and who it appears may have been unconnected to that perceived loss.  At no point whilst you were both in the house, was any request whatsoever made for the handbag.  This was a confrontational aggravated burglary involving an intention to create fear at the point of entry into the victims’ home.  I was told that six children were within the house asleep at the point of each of you committing this crime.

74Mr Rose, you caused Mr Hayes injury via the use of the weapon, the baseball bat, in his own home, at a place where he was entitled to feel safe. Your offending occurred in the midst of chaos caused by the attendance of others who had parked their car outside your home but whose actions do not contribute to your offending except in this contextual way.

75As I am obliged to do, I consider and have regard to the considerations relevant to determining the relative seriousness of the offence of aggravated burglary, as specified by the Victorian Court of Appeal in DPP v Meyers (2014) 44 VR 486 [48]. And as I have noted, your shared intention in company with one another was to assault an occupant of the home; you were acting in company with one another; the burglary took place in the early hours of the morning. That assault was reactive to a perceived grievance between you, Ms Lagerwey, and others in the house, over the missing handbag. Ms Lagerwey, you lured your son into your criminal act of aggravated burglary, and then he took the frightening situation even further by you, Mr Rose, causing injury to the occupant. I share the view of the prosecution that this is a serious example of aggravated burglary with an intention to assault.

76Mr Rose, the injury that you caused in the circumstances of recklessness I have described, including the use of the weapon, the location of the offending, and in the presence of others also justify a conclusion that this is a serious example of that offence.  When your premises were later searched, a crossbow was located.

Current sentencing practices; purposes of sentencing; sentencing submissions

77I accept and take into account in respect of your offending, Mr Rose, that the two indictable offences occurred in close succession in time, and I intend to have proper regard to the totality principle in structuring my sentence on the three offences.

78I am also obliged to apply the parity principle of sentencing in respect of the sentences imposed on each of you on the offence of aggravated burglary.

79You were 24 years of age at the time of your offending, Mr Rose, still relatively young, and as the case law recognises, I consider you at that age to have been 'more prone to ill-considered or rash decisions.'[3] You had a very limited criminal history at the time of your offending, and as I have said, I am prepared to conclude that this was out of character for you.  The long period of time that has passed since your commission of the offences has shown that you are more than capable of making sensible decisions, including as to the extent of alcohol that you may consume before you are at risk of acting poorly, as well as leading to a growing understanding that the psychological setbacks that you experienced in early life, especially linked to your sense of responsibility in protecting your mother, do not serve you favourably.  You are motivated to continue to abstain from drugs, and you have a dear and supportive network.  In all of the circumstances, I am prepared to infer that your prospects for rehabilitation are good.

[3]        Azzopardi, Baltatzis and Gabriel v The Queen  (2011) 35 VR 43, [34]-[40].

80Ms Lagerwey, you were a mature woman with limited criminal history, apparently heavily intoxicated, and as with your son, I am prepared to infer that this conduct, whilst serious, is out of character for you.  Your time on remand has weighed very heavily upon you psychologically which, as I have indicated, I have taken into account, and I understand and infer that you may well feel a sense of responsibility for involving your son in your actions as you did, which has interfered with his life and freedom ever since.  In all of the circumstances, I am also prepared to infer that your prospects for rehabilitation are good.

81The offences of confrontational aggravated burglary in each of your cases, and causing injury recklessly, Mr Rose, are each of unfortunate prevalence, and I have been reminded by the prosecution of the important statements of principle in Court of Appeal decisions which bind me in this difficult exercise.  These have been cited.  I must emphasise general deterrence, punishment and denunciation in the sentences that I pass.

82I also intend to impose sentence that emphasises and allows for each of your rehabilitation, whilst also paying attention to the other purposes of sentencing, including specific deterrence, a measure of which is needed in each of your cases.

83I have been reminded by counsel of sentences passed in other similar cases cited, and of course I am aware of current sentencing practices in respect of each offence.  In each of your cases, unusually, a significant period of time has passed since the commission of your offences, with all but a short portion attracting conditional bail, during which the matters have hung over your heads.  Further, as I have indicated, you entered pleas of guilty at a time where there was significant utilitarian benefit in those pleas, owing to the effects of the pandemic upon the court.  In my view, these unusual factors may result in the imposition of sentences which may appear to be lenient in comparison to other sentences passed at other points in time by this court.

84Mr Rose, Ms Lagerwey, each of your counsel has ultimately submitted that a combination of time served on remand, together with an appropriately structured community corrections order, is the appropriate and proportionate sentence in all of the circumstances of the case.  You have each been assessed as suitable for such an order with appropriate conditions, whilst the Office of Corrections notes in each of your cases that you are at medium risk of reoffending.

85The prosecution submitted that a combination sentence is out of the range properly available to me in the proper exercise of my sentencing discretion.  Necessarily, I have reflected exceptionally carefully on the competing submissions, and have also had careful regard to the parsimony principle of sentencing.

Sentence

86I will start with you, Ms Lagerwey.  Ultimately, I am persuaded with some hesitation that I am able to accede to your counsel’s submission, and on your charge of aggravated burglary I now impose a combination sentence limited to 70 days’ imprisonment with time served, with a community corrections order to start today for a period of two years, with conditions that oblige you to complete 200 hours of unpaid community work, that you undertake supervision as directed, and that you be assessed and treated for (1) drug use; (2) alcohol use, and (3) for your mental health.

87I need to obtain from you your consent before I am able to pass that order upon you.  Are you willing to enter into a community corrections order in those terms, madam?

88OFFENDER LAGERWEY:  Yes.

89HER HONOUR:   Thank you. 

90Were it not for your plea of guilty, had the matter proceeded to trial but resulted in a guilty verdict, I would have imposed one year and nine months’ imprisonment upon you.

91Mr Rose, in your case, I am unable in the exercise of my discretion to follow the same course.  On your charge of aggravated burglary, you are convicted and sentenced to one year and nine months’ imprisonment.  This is the base.  On the charge of causing injury recklessly, you are convicted and sentenced to nine months’ imprisonment, three months of which I order be served cumulatively upon the sentence imposed on your first charge.  On the related summary offence, you are convicted and sentenced to one month imprisonment, to be served wholly concurrently.  This is a total effective sentence of two years’ imprisonment, and I order that you serve 12 months before parole eligibility.  Fifty days’ imprisonment I reckon as served.  Were it not for your pleas of guilty, had the matter proceeded to trial on the indictable charge but resulted in guilty verdicts, I would have imposed a total effective sentence of three years’ imprisonment upon you.

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