Director of Public Prosecutions v Rovere
[2021] VCC 1119
•12 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CR -20-01678
Indictment No. L11041893
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT ROVERE |
---
| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 February 2021, 7 April 2021, 2 June 2021, 29 July 2021, 6 August 2021 |
| DATE OF SENTENCE: | 12 August 2021 |
| CASE MAY BE CITED AS: | DPP v ROVERE |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1119 |
REASONS FOR SENTENCE
Subject:CRIMINAL LAW
Catchwords: sentence, guilty plea, aggravated burglary, COVID-19
Legislation Cited: s.6AAA of the Sentencing Act;
Cases Cited:Hogarth v The Queen 37 VR 658; DPP v Meyers [2014] VSCA 314; Boulton v The Queen [2014] VSCA 342; DPP v Worboyes [2021] VSCA 169
Sentence:
APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr J. Goetz | Office of Public Prosecutions |
For the Accused | Mr S. Belcher |
HIS HONOUR:
1. Brett Rovere, you have pleaded guilty to aggravated burglary and recklessly causing injury. The maximum penalty for aggravated burglary is 25 years' imprisonment and for reckless injury it is 5 years' imprisonment.
2. The facts in this matter were set out in the prosecution sentencing indication document which was tendered as an exhibit on the plea. I will briefly summarise the circumstances of the offending.
Circumstances
3. The background to this offending is that you run your business from sheds that you rent in Daylesford. In the lead up to these offences your landlord leased to the victim, Mr Tybor Hegedis, a section of the shed you were occupying. You were annoyed and agitated by this turn of events.
4. At 11.45 pm on 29 April 2020, after consuming alcohol at home, you knocked on the door of the victim’s home in Daylesford. He was getting ready to go to bed. He responded to your loud banging by partially opening the front door to see who was outside. You forcefully pushed open the door and entered his house. You pushed him backwards and punched him multiple times in his head and face. He fell over a couch in the living room. You punched him again and grabbed hold of him. Eventually, he was able to calm you down and you left out the front door. The victim sustained a cut lower lip and bruising to the left side of his hip area.
5. You were later interviewed by police about this offending. You attempted to blame the victim by suggesting he had attacked you. You ran a contested committal on this basis. This version of the facts was implausible, something which you ultimately accepted at the sentence indication hearing after which you entered a plea of guilty. Your plea of guilty cannot be characterised as an early plea of guilty. Nonetheless, the utilitarian value of your guilty plea is significant. You have spared Mr Hegedis the ordeal of having to give evidence about this matter again. You have saved the court the time and resources involved in a trial.
6. This utilitarian value is especially significant at the present time where the court faces a very substantial backlog of trials because of the suspension of jury trials during 2020, and again at this time, in response to the pandemic. The disruption to the courts operations from community lockdowns continues. This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes [2021] VSCA 169, where the court said:
'Given the unhappy state of the courts' lists the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'[1].
[1] DPP v Worboyes [2021] VSCA 169 at [35].
7. I also accept that your plea indicates some remorse and a willingness to facilitate the course of justice.
Victim Impact
8. The enduring effects of your offending on the victim are set out in his victim impact statement which was tendered on the plea. In that statement
Mr Hegedis says that your actions have caused him to be hyper vigilant, especially near his home, where he used to feel safe. He is less trusting of people and has increased anxiety. He feels uneasy at night when he hears noises, and it has affected his sleep.9. Your offending has placed him in an invidious position because his work puts him in close him proximity to you which makes him feel uncomfortable. He feels alone because he believes others who work in the area do not understand the lingering impact on him of what you did. He feels you have not acknowledged what you did, and this makes him feel more isolated. Since I heard the plea last week though you have written a letter of apology that was tendered as an exhibit this morning. I accept the letter is a start to alleviating Mr Hegedis’s difficulties working close by you and that the letter is sincere.
10. He no longer feels as safe as before living in Daylesford. You have deprived him of the joy he felt living in the community.
11. In the assault you broke Mr Hegedis’s glasses and he has not been able to afford a new pair. When I heard the plea in this matter last Friday, I urged you to compensate the victim for his glasses and I accept that this has been done in the past week with a bank cheque in the sum of $1000 being sent to the victim. This is at least a tangible step by you in demonstrating some remorse for the ongoing problems you have caused Mr Hegedis.
12. The impact on your victim, Mr Hegedis, is a significant matter in sentencing in this case.
Gravity
13. This was serious offending. Aggravated burglary carries a maximum penalty of 25 years' imprisonment, reflecting the serious nature of the offence. In the case of Hogarth v The Queen 37 VR 658[2], the Court of Appeal described home invasion, which this was, as a particularly nasty form of criminal conduct.
[2]Hogarth v The Queen 37 VR 658 at [1].
14. In the case of DPP v Meyers [2014] VSCA 314[3] , the Court of Appeal set out a number of factors to be considered in assessing the relative seriousness of aggravated burglary offence. In this case, although your offending was not as part of a group and you did not have a weapon, your intention on entry was to assault the victim and this offence occurred late at night. You barged in the door he had opened.
[3]DPP v Meyers [2014] VSCA 314 at [47], [48]
15. It seems you were fuelled by alcohol and an unjustified grievance towards the victim over the situation at the shed. Your real issue was with your landlord. There does not seem to have been any real planning on your behalf to commit these offences. Mr Belcher has characterised your behaviour as a moment of madness, and given your exemplary history and the very positive character material I accept this. I accept you were under some financial pressure at that time, but that in no way excuses what you did.
16. This was serious criminal behaviour. You knew Mr Hegedis was inside and once you entered you immediately threw a flurry of punches. Fortunately, the physical injuries you inflicted were relatively minor. The same cannot be said about the ongoing psychological effects your actions have caused for
Mr Hegedis. The assault was a nasty incident involving multiple punches.17. Considerations of general deterrence, denunciation and just punishment are all important in formulating the sentence in this case.
Personal Circumstances
18. You are now 47 years old. You are self-employed. You run an industrial surplus and salvage business between Victoria and South Australia. Your profits have been reduced by the pandemic. You have been running your businesses in Daylesford for approximately a decade. You have no prior convictions.
19. You are in a stable relationship with Ms Catherine McDiarmid. You have been together for twelve and a half years now. Ms McDiarmid has provided a reference for you. In that reference, she refers to the business which you run together. The two of you relocated to Daylesford from Melbourne eight years ago. You have two adult children from a previous relationship.
20. The most important mitigating factor on your behalf is your previous good character. Ms McDiarmid describes you as a positive person who is highly motivated, hard-working and committed to the business you run together. She says you are not a negative or aggressive person. She describes you as a generous person. She refers to the circumstances of your landlord renting out part of the shed and the stress this caused. Business was difficult at the time because of the pandemic.
21. She emphasises that your conduct was completely out of character and she has never seen you involved in any violent incidents before this. She speaks of your key role in the running of the business and doubts she would cope without you. I am satisfied that if I send you to jail, concern about the future of your business and the impact on Ms McDiarmid would weigh very heavily on you.
22. Your landlord, Mr Eddy Comelli, has provided a reference. He says these charges are out of character and he is not aware of any further incidents between you and your co-tenants.
23. Ms Jennifer Comber rented her house in Daylesford to you when she was travelling overseas. She describes you as a respectful tenant who always paid the rent on time and who fixed things on the property without seeking any recompense. On one occasion when she had been robbed overseas, you paid double rent to alleviate her family’s financial problems whilst overseas. She knows you socially, as does her husband. She says that during the COVID-19 lockdown you were instrumental in organising online activities that kept friends together and connected. You also organise regular card and pool nights which bring together men in the Daylesford community.
24. Your accountant, Wayne Henson, has also provided a reference. He has known you personally for more than 20 years through volunteer work in South Australia. He describes the two companies that you run: Imperial Fox and Rovere Industries. He says you are integral to the success of the two companies. He says that many contractors and suppliers in Daylesford are dependent on your businesses for their ongoing operations.
25. Mr John Psaila has known you for about 20 years. He met you when you both worked for Hume Highway Truck Sales. He says you are trustworthy, honest, dedicated, and hard-working. He describes you as a loyal and generous person who always keeps in touch with the friends you have made over your life. He regards the offences here as completely out of character for you.
26. Mr David Wellings is the controller of the State Emergency Services in Daylesford. He met you when you moved to Daylesford eight years ago. He was soon impressed by your community spirit and your enthusiasm to engage in community projects and activities. He says you have always been supportive of the local SES unit through fundraising, recruitment, donations and by providing resources during major emergency events.
27. He gives an example of you assisting to extract an emergency service vehicle that had become bogged by using your own forklift and other equipment. You did this at your own expense. He describes you as an active, proud and generous member of your local community and a hard and diligent worker. He says that in his view, the charges against you are out of character and contradictory to the person he knows.
28. All of this material is impressive. I accept that you are a generous person, a hard-working person and a loyal friend. I accept you are a positive influence in your community. I accept this offending was entirely out of character. It is very significant that at your age, 47 years old, not only have you never committed any criminal offences, but that you have led a life characterised by positive contributions to your social networks and your community. Beyond that, you have been a generous contributor to voluntary organisations working on behalf of the community. You must be given significant credit for these matters. Having regard to this material and the absence of prior convictions, I think it is highly unlikely you will offend in the future.
29. Mr Belcher submitted on your behalf that I should impose a community correction order. He relied on the principle of parsimony and emphasised the principles stemming from the decision in Boulton v The Queen [2014] VSCA 342. In Boulton, the Court of Appeal said at paragraph 121:
'Given that a community correction order could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there are any feature of the offence, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[4]'
[4]Boulton v The Queen [2014] VSCA 342 [121]
30. The prosecution initially submitted that a combined sentence of imprisonment and a Community Correction Order was within the range of appropriate sentences. After consideration of the character references, the prosecution submitted that a Community Correction Order alone was within the range of sentences open.
31. Having regard to these submissions I had you assessed for a Community Correction Order. The report that I received indicates you are suitable for such an order. You are regarded as having a low risk of re-offending and supervision is therefore not recommended. Community work and referral for forensic intervention are recommended. I should add that the prosecution's submission was that a Community Correction Order along with a financial penalty was appropriate.
Sentence
32. Mr Rovere, you should be ashamed of the way you behaved and the impact your actions had on Mr Hegedis. When I first read the summary of your offending, my initial inclination was to impose a period of immediate imprisonment for this offending in recognition of the objective gravity of your conduct. However, I have reflected on the matter and the character material, which demonstrates that you have led a very positive life. The parsimony principle dictates that that I must not impose a sentence more severe than a proper application of the relevant sentencing principles requires.
33. In this case, having regard to the absence of prior convictions and the character material, I have come to the view that a Community Correction Order coupled with a substantial fine properly reconciles the mitigating factors with the objective gravity of the offence; and the need for the court to give weight to general deterrence, denunciation and just punishment.
34. Mr Rovere, the sentence I impose in this case are as follows:
·On both charges you are convicted and placed on Community Correction Order for a period of 2 years. I order that you perform 200 hours of community work in that time, and I order that you are to be assessed and participate in the Forensic Intervention Branch services as recommended.
·On both charges you are convicted and fined and aggregate amount of $5000.
·Pursuant to s 6AAA of the Sentencing Act, had you pleaded not guilty to this matter I would have sentenced you to a total effective sentence of
2 years' imprisonment, with a non-parole period of 14 months.
35. Are there any other orders that need to be made?
36. MR GOETZ: No, Your Honour.
37. HIS HONOUR: The fine goes off to Fine Services Victoria, Mr Belcher, and it can be paid off.
38. MR BELCHER: Correct, Your Honour.
39. HIS HONOUR: I have made it two years. The minimum was 15 months, having regard to the referral and it seems to me given possibly delays with community work there needs to be enough time to give scope for that community work to be done.
40. MR BELCHER: Understood, Your Honour, thank you.
41. HIS HONOUR: Mr Rovere, do you understand all of that?
42. OFFENDER: Yes, Your Honour.
43. HIS HONOUR: What is now required is that the document will be sent through to you. I am not sure if we have got your details. I could send it to Mr Belcher I suppose or we could send it to Mr Belcher initially, but if you could provide your details the document will be sent through and you will then need to sign it.
44. I should say this to you. All community correction orders have four conditions, the first of which is I will just get my associate to bring in the draft community correction order. I assume the Corrections Services is Daylesford, is it,
Mr Belcher?45. MR BELCHER: Your Honour, excuse me, I believe the reporting obligation would fall to Ballarat to catch the Daylesford area.
46. HIS HONOUR: Ballarat, yes. When the document comes in I will read you the core conditions, Mr Rovere, because these things do not end here and now, because if you do not get through the order, if you breach the order, then you can be subject to a resentencing, and I will go through the conditions in a moment.
47. You will need to get in touch with Ballarat Corrections. It is generally within 48 hours. I would imagine at the present time what you will need to do is ring them within 48 hours. That is the first condition, that is the start of the order. There are a number of core conditions, the most fundamental of which is that you not commit any offence punishable by imprisonment for the next two years.
48. If you do that, that is a breach of the order. So it operates as a sort of period of good behaviour in that way. You must not commit any further offence in the next two years. The next thing is that if you change your address you are required to tell Corrections, I think it is within 24 hours. If you change your job you are required to tell Corrections.
49. If you decide you want to leave Victoria you have to tell Corrections about that as well. So these are all the core conditions of the order. So if you breach any of those conditions then you can be brought back before me for resentencing. In addition, the special conditions are that you are to perform 200 hours of community work over a period of two years.
50. So that needs to be done over the next two years. If that is not done that would be a breach of the order. In addition you have been referred - it is effectively offending - what used to be described as offending behaviour programs. It could be something like anger management, for instance. I do not know, but that is a matter for Corrections.
51. That is what the referral for Forensic Intervention Services is. Do you understand? Some program that Corrections regard as suitable. I will in this case order that 20 hours of any time that you participate in any such program, if you do, can be subtracted from the community work in this case.
52. So those are the conditions. If you breach any of those conditions, those core conditions, and Mr Belcher will take you through the core conditions as well. I have not mentioned each and every one of them, but you are required to accept visits and attend as directed to Corrections, and there is another condition that you have to comply with all the various sentencing Corrections regulations that apply to community correction orders as well.
53. So you have to do all those things and if you do not, it can be brought back before me. One of the options I have is to cancel this Community Correction Order and impose fresh sentences on the original offences. You probably understand from the 6AAA that I imposed of two years with a minimum of
14 months, that it would be highly likely that a period of imprisonment would then be imposed.54. I do not expect that you will have any difficulty getting through these orders given your history. Do you understand? So, it is critical that you do all of that. Is there anything else required?
55. MR GOETZ: No, Your Honour.
56. HIS HONOUR: Thanks very much, Mr Goetz, thanks, Mr Belcher. Thank you, I can see Mr Hegedis is online there so I hope he has heard all of this and I do not think there is anything further. Those documents will be sent through.
57. MR BELCHER: Thank you very much, Your Honour.
58. MR GOETZ: May it please the court.
59. HIS HONOUR: I will now stand down or I will adjourn in this matter.
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