Director of Public Prosecutions v Ross

[2015] VCC 42

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-02083

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM ALEXIS ROSS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	27 January 2015
DATE OF SENTENCE:	30 January 2015
CASE MAY BE CITED AS:	DPP v Ross
MEDIUM NEUTRAL CITATION:	[2015] VCC 42

REASONS FOR SENTENCE
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Subject:         Aggravated Burglary
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      5 years' imprisonment with a 3 year non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Offender	Mr I. Crisp

HIS HONOUR:

1Adam Ross, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally causing injury and one charge of making a threat to kill.  You have also pleaded guilty to one summary charge of assault.  At the time of your plea you also admitted a lengthy prior criminal history.

2The maximum sentence for the crime of aggravated burglary is 25 years' imprisonment.  The maximum sentence for the crime of intentionally causing injury is 10 years' imprisonment.  The maximum sentence for the crime of making a threat to kill is 10 years' imprisonment.  The maximum sentence for the summary offence of assault is 15 penalty units or three months' imprisonment.

3Your offending is summarised in a prosecution opening which was tendered and read to the court by the prosecutor Mr O’Doherty.  Your counsel Mr Crisp accepted that the summary was accurate and formed a proper basis upon which I can proceed to sentence you.  It is not necessary that I here repeat what is there set out except in summary form.

4On 21 September 2014 you were at your home in Maiden Gully where you drank a 700ml bottle of vodka and imbibed 6 Imovane tablets which were prescribed sleeping medication.  You also smoked a gram of cannabis.  Thus affected you then went to the home of a friend at about midnight and advised her you were “going to do a run through of a house”.

5At around 1 am you attended at a house in MacKenzie St West in Golden Square.  You knew that house to be occupied by the victim in this offending and his girlfriend.  You had past dealings with him and you had been threatening him for some time.  The front security door on the house was locked but you forced the lock with the aid of a tyre lever you found on the front porch of the house and broke open the front door.  You went into the home and went to the bedroom where you thought your victim was but it was occupied by a six year old child.  By this time the occupants were awake.  You were confronted by the victim.  Using the tyre lever you hit him multiple times to the head cutting his head and causing blood to spill from the cut.  This later required 17 stitches.  You told the victim that you were going to kill him and a scuffle followed when you were forced backwards out the front door and the victim closed the door behind you.  Not content you picked up a metal drawbar and violently smashed the door in an attempt to re-enter the house.  You were then confronted by the victims girlfriend who told you there were children present (in fact there were four children in the house).  She told you she was going to call the police which she later did.  You ran from the house and returned to your friend’s house where you showered.  You became angry because you could not find your tobacco.  You were asked to leave by your friend who pushed you towards the front door.  Your violent reaction was to punch her in the face causing immediate pain, swelling and redness.

6You were arrested around 9 am the following morning and you made full admissions.  You told the police you had had a physical altercation with your victim some 12 years earlier and you had never forgiven him.  You also said you had not spoken to him for 10 years.  You told the police of your consumption of alcohol and drugs prior to the offending.  You were cooperative with the police and expressed remorse for your actions.

7As the maximum penalty suggests, and as the Court of Appeal of this state has repeatedly said, the crime of aggravated burglary is a very serious offence.  Your offending was a serious example of a very serious offence.  You went to the home of a sleeping family in the middle of the night, forced your way into their home and carried out a violent and unprovoked assault upon your victim using a tyre lever.  You threatened to kill him and having regard to the nature of the injury to his head, and the fact you were armed with a weapon, your victim was entitled to think you had every intention of carrying out your threat.  After you left the scene and retreated to your friend’s home you also assaulted her.  You are obviously given to acts of violence.  The fact you were obviously heavily affected by a cocktail of alcohol and drugs does not excuse your offending.  It does in part explain your offending.

8In passing sentence I take into account the fact that you have pleaded guilty at the earliest available opportunity, as I must.  Because you have pleaded guilty so early in the investigation you have avoided the need for the time and costs of both a committal and a trial and you have saved your victims from having to re-live the awful events which you inflicted on them.  I have reduced the sentence that I would have imposed but for your pleas of guilty and this is reflected in the sentence that I shall shortly pass.

9I have also taken into account your remorse as expressed to the police when you were interviewed and as expressed to a psychologist whom you later saw.

10In passing sentence I have taken into account the victim impact statements of your victim and his girlfriend as I must.

11You are approaching your 41^st birthday.  For more than 6 years you have been gainfully employed as an arborist holding down a good job which you qualified for completing an apprenticeship at a mature age.  In passing sentence I have taken into account a good reference about you from your employer.

12You admitted a lengthy prior criminal history from 18 court appearances between 1991 and 2005.You have numerous prior convictions for drug offences and acts of violence including recklessly causing serious injury, wilful damage, unlawful assault and assault police.  In the past you have received dispositions designed to assist with your rehabilitation in the form of community based orders, an intensive corrections order and suspended sentences as well as sentences of immediate custody.  To your credit you did not offend between 2005 and this offending in September 2014 and you seemed to have your life on track until too much alcohol mixed with drugs set you off on the path to this offending.

13Mr Crisp relied upon a report from  neuropsychologist  Dr Vowels.  She saw you after a referral from Mr Crisp in November 2014.  She carried out various psychological tests and she concluded that your intelligence quota was in the low-average to borderline range.  She thought that in your earlier years at school you may have suffered ADHD which was undiagnosed.  She opined that because of prolonged and excessive use of alcohol and drugs, and also various accidents and misadventures, which you advised her about but which were otherwise not documented in any way, where you allegedly suffered head injury, that you may suffer from an acquired brain injury which affects your reasoning capacity.

14Relying on this report Mr Crisp submitted that at the time of your offending and, now when you fall to be sentenced, because of your low IQ and the fact you suffer from depression, I should reduce any sentence I impose applying the principles expressed by the Court of Appeal in a decision known as Verdins.  I do not accept that submission and I do not accept that which is found in the report of Dr Vowels.  Dr Vowels report was based entirely on what facts you related to her at interview.  The extent of any head injury previously suffered by you is not verified independently in any way.  The diagnosis that you may suffer from an acquired brain injury because of previous head injuries and/or excessive and prolonged alcohol and drug abuse, in my view, is somewhat speculative and based entirely upon self-report.

15I do accept that your intelligence quota may be in the low average borderline range and I do accept you may now suffer from some depression for which you are treated with modest daily dosage of the medication Effexor 75mg.  I do not accept these factors influenced your reasoning capacity at the time of your offending.  At the time of offending your reasoning capacity was influenced by excessive alcohol and drug use which you voluntarily chose to imbibe not long before the offending occurred.  I do not accept that the report of Dr Vowels provides any evidence that you will find a term of imprisonment any more difficult to serve than most, or any basis for tailoring the sentence to suit your personal disposition.

16Relying on the report of Dr Vowels Mr Crisp asked me to consider the imposition of a community corrections order with strict conditions.  After the plea he contacted my associate and informed her he relied upon the recent guideline judgment of the Court of Appeal in Boulton.  I of course have read Boulton’s case.  I have given consideration to this submission only because you did not offend for the period between 2005 and 2014, which suggests some hope that you are capable of being rehabilitated, but I am of the opinion that your prospects for a complete rehabilitation are poor, especially whilst you engage in excessive drinking and drug taking.

17Having regard to the seriousness of your offending here, I do not agree that a community corrections order with conditions is an appropriate disposition.  This is especially so having regard to your lengthy criminal history.

18Mr Crisp submitted in the event I do not impose a community corrections order I give consideration to a lengthy period on parole, where you can be supervised.  Having given the matter considerable thought I think you would benefit from a longer than normal period on parole and this is also reflected in my sentence.  I have done this because, as I say, the fact you did not re-offend between 2005 and 2014 suggests there is at least some hope for you to rehabilitate yourself.  Whether you do so or not is entirely up to you.

19I received evidence from your sister and father that you have worked hard and tried to stay out of trouble and have tried to avoid alcohol and drugs for the last nine years or so.  I accept you have adhered to strict bail conditions since offending.  All of these matters are to your credit and I have taken them into account in arriving at my sentence.

20In sentencing you I must have regard to proper application of the principles of general deterrence.  Your crimes were violent and you threatened more violence even though you were unprovoked.  You invaded a family home in the middle of the night where a family with children were sleeping.  The sentence imposed on you needs to send a clear message to others who might be inclined to act in such a violent way to think again knowing that if they also offend they will go to jail.  In your case, because of your lengthy criminal history the sentence imposed must also reflect an appropriate measure of specific deterrence to ensure you do not reoffend again in this way.  You have received some non-custodial dispositions in the past that were designed to assist you rehabilitate yourself but you did not, it seems, take full advantage of them.

21Further, the sentence I impose must also reflect appropriately the court’s and the community’s denunciation of your offending.  The sentence I will now pass I think appropriately addresses all of these factors as well as taking into account each of the mitigating factors relied upon by Mr Crisp on your behalf.

22On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of four (4) years.

23On Charge 2, intentionally cause injury, you are convicted and sentenced to a term of imprisonment of two (2) years.

24On Charge 3, make threat to kill, you are convicted and sentenced to a term of imprisonment of two (2) years.

25On the charge of summary assault you are convicted and sentenced to be imprisoned for one month.

26I direct that one year of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1 making a total effective sentence of five (5) years' imprisonment.  I direct that you serve a minimum term of three (3) years' imprisonment before being eligible for release on parole.

27I declare there has been three (3) days pre-sentence detention and that three (3) days be reckoned as having been already served under the sentences imposed this day and deducted administratively.

28For the purposes of s. 6AAA of the Sentencing Act 1991 I say that had it not been for your pleas of guilty to the charges I would have imposed an overall sentence of seven (7) years' imprisonment and I would have imposed a minimum term of five (5) years' imprisonment.

29I have signed the disposal order sought by the prosecution which was not opposed.

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