Director of Public Prosecutions v Rowcroft (a pseudonym)

[2022] VCC 1247

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

Andrew Rowcroft (a pseudonym)

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2022
DATE OF SENTENCE:	5 August 2022
CASE MAY BE CITED AS:	DPP v Rowcroft (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1247

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempted aggravated burglary – Plea of guilty – Sentence indication – Community Correction Order – Family violence – Rehabilitation – Criminal history – Delay – Psychological report – Specific deterrence

Legislation Cited:      Sentencing Act 1991 (Vic) – Criminal Procedure Act 2009 (Vic)

Cases Cited:Degney v The Queen [2019] VSCA 183 - DPP v Meyers (2014) 44 VR 486 - Worboyes v The Queen [2021] VSCA 169 - Worboyes v The Queen [2021] VSCA 169 - DPP v Abrahama & Anor [2015] VCC 1436 - DPP v Talker [2018] VCC 227 - DPP v McDowell [2018] VCC 275 - DPP v Neil [2014] VCC 1888 - DPP v Neilson [2013] VCC 1985 - DPP v Crozier [2017] VCC 621 - DPP v Bowler [2015] VCC 1061.

Sentence:                  TES: 2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Zammit (Plea) Mr J. Hurley (Sentence)	The Office of Public Prosecutions
For the Accused	Mr J. Miller	Marshall Jovanovska & Ralph

HER HONOUR:

1Andrew ROWCROFT,[1] you have pleaded guilty to one charge of attempted aggravated burglary. The maximum penalty for this offence is 20 years imprisonment.

[1] A pseudonym.

2Your case had been listed for trial and you sought a sentence indication on the current charge. On 22 June 2022, pursuant to s207(1)(a) of the Criminal Procedure Act2009,[2] I indicated that if you were to plead guilty, I would impose a Community Correction Order. Subsequent to your plea, I ordered a pre-sentence report as to your suitability for such an order, and you have been assessed as suitable.

[2] Criminal Procedure Act (Vic) 2009 s207(1)(a).

Circumstances of the offending

3In November 2014 you married Yasmine Saliba,[3] you lived together in a home in the suburb of East Keilor. On 21 July 2020, after discovering that you had been unfaithful, your wife left the marital home and went to stay in St Albans with a friend, Kayla Rotton.[4]

[3] A pseudonym.

[4] A pseudonym.

4At 3.20 am on the 30 July 2020, you sent your friend’s ex-partner, Thomas Flynn,[5] a text message, stating 'Thomas if kayla doesn’t get yasmine outa that house by 6 pm sharp today, your going to wish that you never met me you scum bag . . . Mark my words if your not down this side of town today people are going to get hurt. Ive lost yasmine but ur gonna lose a lot more than you think. Test me mother fucker well see how that works out for your family'. Clearly this is a threat directed more to Mr Flynn, who I understand had revealed your infidelity to your wife.

[5] A pseudonym.

5On 30 July 2020, you spoke to Yasmine on the phone. You told her that in your view it was not culturally right for her to be living with her friend and she should move to her parent's home. Yasmine agreed and told you she would move the following day.

6At around 5.30 pm on 31 July 2020, you again called Ms Saliba and discovered that she was still at Ms Rotton’s house. You then started screaming at Ms Saliba and told her that you would be attending the address to talk to her and to take her to her parents’.

7You arrived at the address between 5.30 to 6.30 pm and were observed to be 'angry and aggressive and yelling and screaming as soon as you arrived'.

8You argued with Ms Rotton and demanded that she open the security door and consistently yelled that you wanted to speak with your wife. At some point, Ms Rotton contacted Mr Flynn and asked him to call the police, which he did.

9During the argument, you threatened to break the front door and Ms Rotton said words to the effect of 'do whatever you want'. Around this time, Ms Saliba said to you that she would open the door if you calmed down.

10There was further arguing and you continued to yell, 'I just wanna talk to my wife'. At one point, you went to your car and got either a wrench or a hammer. You then returned to the house and hit the door with the tool. You continued to hit and kick the security door. The outside door handle broke. You told Ms Rotton and Ms Saliba that you were going to use your car to pull the door off. You got in your car and reversed it towards the door. These are the circumstances of Charge 1 of Attempted Aggravated Burglary.

11Both women were scared and intimidated and believed that you were going to hurt one or both of them.

12Several people in the area heard you yelling and observed you kicking and hitting the front security door. A neighbour recorded parts of the incident on her mobile phone and called Triple 0 on a couple of occasions. Mr Flynn also called Triple 0 on a couple of occasions.

13At 5.50 pm, members of the Australian Defence Force were in the area conducting COVID-19 business. One of the ADF personnel contacted Triple 0 to report that 'there seems to be some sort of domestic'.

14Another ADF member, observed you 'kicking and banging on the front door… while screaming and swearing'. . .He said, 'This guy would kick the door a few times, then bang on it with his fist. He was trying to get inside the house. He was screaming, “Let me in the fucking house!” He kept kicking, banging, swearing and screaming'. The ADF member noticed the security door and 'could see that the screen security door wasn’t budging and it was doing a good job at keeping him out. I figured at that point that he wouldn’t get through the door and into the house'.

15At 5.55 pm Ms Rotton also called Triple 0. She requested police attend urgently, you could be heard in the background of the call yelling and swearing aggressively.

16Police attended at the address at approximately 6.00 pm and observed you kicking at the security door. Initially you were compliant but then you became aggressive. Both Ms Rotton and Ms Saliba exited the property at this time, before Ms Rotton went back inside the property. You argued with the police to not get involved and to allow you to speak with your wife.

17One of the first comments you made to the attending officer is 'I wasn’t here for anything but to talk. You should have just come outside'.

Nature and gravity of offending

18Attempted aggravated burglary is an inherently serious offence, and that is clear from the maximum penalty of 20 years. Your offending is aggravated by the fact that it was committed in the context of family violence.[6] In determining the seriousness of your offending, both Counsel referred me to the case of DPP v Meyers,[7] in that case the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors with the necessary adjustments to take into account the fact that you are to be sentenced for an attempt only.

[6]Degney v The Queen [2019] VSCA 183 at [50].

[7] (2014) 44 VR 486.

19It is accepted by the prosecution that your intent in attending at the property was to enter and assault your estranged wife by remonstrating with her. The prosecution does not allege that you had an intent to cause specific harm or injury. You attempted to gain entry by kicking the door and hitting it with both of your fists and later a tool you had retrieved from your car. There was no threat or attempt by you to use the tool to assault any person present. Further, you attended at the address alone in the early evening obviously aware that Ms Saliba and Ms Rotton were present. The particular purpose you had in mind at the point of entry is a significant feature going to the gravity of the offence.[8] Such purpose can be gleaned from consideration of the particular circumstances of your offending.

[8]DPP v Meyers (2014) 44 VR 486 at [49].

20It is apparent, Mr Rowcroft, that your wife had left you in the days leading up to this incident. You were unhappy about where she was staying. Ms Saliba initially told you that she intended to move to her parents’ home and had then changed her mind. It appears that this is what upset you and you were angry and aggressive by the time you arrived at Ms Rotton’s address. I accept that your prime motive in attending the property was to talk with your wife and collect her and take her to her parents’ home as had been arranged. Given the context of your relationship I accept the prosecution submission that you were trying to exert a form of control over Ms Saliba by making her stay with her parents.

21Clearly, you went way beyond your initial intention or prime motive of talking with your wife and collecting her. You were at Ms Rotton’s home for around 20 minutes yelling and screaming and carrying on. I described your behaviour during the sentence indication as 'untidy'. This was an understatement. You were clearly upset, intent on speaking with your wife and had lost all self-control. You repeatedly hit and kicked the door and then got a tool from your car and again hit the door with the tool. This would have been extremely frightening for both Ms Saliba and Ms Rotton. Your behaviour caused such a scene that there were at least five calls made to Triple 0.

22Overall, I accept that your offending was not premeditated or well planned. While it does not excuse your behaviour in any way, I also accept that you acted in the heat of the moment and that you were overcome with emotion in the context of your failed marriage.

Plea of guilty

23

As described above, your case resolved at a sentence indication hearing. Although your plea of guilty came just before trial, I consider in the circumstances, it has significant utilitarian benefit. The Court has been spared the time and expense of a trial, witnesses were not required to give evidence at trial and were not

cross-examined at committal. Most importantly the two victims, Ms Saliba and Ms Rotton, were not put through the uncertainty of the trial process.

24In addition, I accept your counsel's submission that a plea of guilty during the COVID-19 pandemic is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times.[9]

[9] Worboyes v The Queen [2021] VSCA 169.

25

I view your plea of guilty as evidence of your genuine remorse for your offending. This is consistent with the remorse you expressed to the psychologist

Ms Kennedy, whose report was tendered on your plea.[10] When discussing the present charge Ms Kennedy has noted that you said 'I can’t bring back time … (and) to everyone around me that I have hurt I want them to know that I am very, very sorry. Each day I go without meth in my life. I am trying to better myself'.

[10] Exhibit 2 on the Plea.

26Mr Rowcroft, I consider your plea to be a valuable one in the sense that you may have had an arguable defence. In these circumstances, I cannot increase the utilitarian value of your plea. However, I can and do take into account, the subjective factors that your plea of guilty demonstrates. These factors include your desire to facilitate justice, your acceptance of responsibility for your offending and as an indicator of the depth and degree of your remorse.[11]

[11] Zogheib v The Queen [2015] VSCA 334.

Background

27You are now 33 years old. You are one of two children. You were born and raised in the North-Western suburbs of Melbourne. Your parents owned, and often worked at a Kebab store. You and your brother spent most of your childhood at the shop.

28You describe your mum as being kind and loving, and you still enjoy a healthy relationship with her, so much so that you presently live with her. Your father, by contrast, was distant and showed no love for either you or your brother. Further, verbal and physical altercations between your parents were commonplace, but lessened when you were aged 13 and could position yourself between them, protecting your mother. Your parents divorced when you were 24 years old. You no longer have contact with your father.

29In terms of your education, you successfully completed your primary years and then attended Secondary College. When you were 16, and in Year 11, you left school so that you could work and contribute financially after the family had gone bankrupt. At around this time your father went to gaol for drink driving.

30You began working as a brickie's labourer and over time completed an apprenticeship to become qualified in your field. You obtained a Certificate III in bricklaying. You also completed education and certification in security.

31In your early 20s you began using methylamphetamine. Although your use was irregular to start with, you became reliant on the drug and used it regularly in the context of ongoing depression. To your credit you have been entirely abstinent from illicit drugs since December 2021.

32You have had only one significant romantic relationship in your life, and that is with Yasmine Saliba. Your relationship lasted for five years from when you married in November of 2014 at the age of 26 until July of 2020, shortly before the incident that brings you to this court.

33Subsequent to being charged you have spent time in Queensland and worked with a friend to set up a kebab caravan. You have plans to return to Queensland in the future. More recently you have returned to Melbourne and worked as a forklift driver for a company that provides intermediate bulk containers to various industries. Depending on demand, you typically work five or six days a week.

34Mr Rowcroft, you have a concerning prior history. Almost all of your prior convictions relate to driving offences. Since October 2008 you have appeared in court on approximately six occasions and have received short terms of imprisonment, fines and an ICO. Of most concern is that you have a prior conviction for assault by kicking which involves Yasmine Saliba. This offending occurred in June 2017. The entry of this matter on your prior history appears consistent with you having failed to appear in November 2018 and then spending 28 days in custody after a warrant was executed. In March 2019 you were sentenced to 28 days' time served. I agree with your counsel that even though you had some prior history it is unusual to receive a gaol sentence for your first offending of violence, unless you had such pre-sentence detention to reckon. This prior conviction is highly relevant.

35You are clearly no stranger to gaol but it has now been three years since you have been in custody and you have made many positive changes to your life. I consider that it would not be in the community's interest, or your own, if I were to return you to prison.

Onerous conditions in custody due to covid

36I take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience. The effects of the pandemic for prisons remain serious, ongoing and fluid. This is particularly so in light of community outbreaks of COVID-19.

Mental Health

37As I mentioned previously a psychological report was prepared by Christine Kennedy and was tendered on your plea.[12] It was her professional opinion that you present as a socially detached individual who grew up in a chaotic home environment characterised by emotional and physical abuse. As a result, you have developed an insecure attachment style. You have features of abandonment and are struggling with the aftermath of your drug addiction. You presented as reflecting on the hurt that you have caused your loved ones and the bad decision making and opportunities you have lost due to drug addiction. In her view you have a realistic self-regard, a healthy philosophy about life and the skills to establish a successful life. Further, Ms Kennedy was of the opinion that there are few, if any, challenges related to your safe management in the community. You are currently involved in a partnership setting up the kebab caravan, as I have said, and you are eminently employable in your trade as a bricklayer or your current occupation as a forklift driver. You have stable accommodation and may benefit from counselling to avoid regressing back to substance abuse. In her view you would also benefit from participation in a men's behavioural change program.

[12] Exhibit 2 on the Plea.

38I accept the opinions of Ms Kennedy.

Delay

39Delay is an important mitigatory factor that I have taken into account in your case. Your case has remained unresolved for two years. There have been numerous listings and unsuccessful attempts at resolution. Your matter has been caught up in the backlog of cases that have plagued the court as a result of the COVID-19 pandemic.

40I also accept that since your arrest and since being charged in 2020 you have had to live with the worry and strain of this case, and it has caused you anxiety and stress.  Since this time, you have not known what your future would hold in terms of your liberty.

41The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. Immediately after your offending, intervention orders were put in place in favour of both Ms Saliba and Ms Rotton. You have not breached either of these orders. There has been no subsequent offending since July 2020 and you have remained abstinent from illicit drug use for approximately eight to nine months. You have worked hard in your employment notwithstanding the uncertainty surrounding your future.

42In the circumstances I consider you have positive prospects for rehabilitation.

Sentencing

43I consider that the relevant sentencing principles that must be applied in your case are specific and general deterrence, denunciation, protection of the community and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. I am of the view that community protection in your case can best be achieved by your rehabilitation.

44I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offence of attempted aggravated burglary. I have had regard to the case of Meyers,[13] Degney[14] and also a number of cases from this court that were referred to in the case of Degney, that includes Abrahama,[15] Talker,[16] McDowell,[17] Neil,[18] Neilson,[19] Crozier[20] and Bowler.[21]

[13] DPP v Meyers (2014) 44 VR 486.

[14] Degney v The Queen [2019] VSCA 183.

[15] DPP v Abrahama & Anor [2015] VCC 1436.

[16] DPP v Talker [2018] VCC 227.

[17] DPP v McDowell [2018] VCC 275.

[18] DPP v Neil [2014] VCC 1888.

[19] DPP v Neilson [2013] VCC 1985.

[20] DPP v Crozier [2017] VCC 621.

[21] DPP v Bowler [2015] VCC 1061.

45Having considered all of these matters it is my view that the applicable sentencing principles that must be applied, in particular general deterrence, can be met by the imposition of a suitably onerous Community Correction Order.

Disposition

46Mr Rowcroft, if you could stand?  As I said at the start of these remarks you have been assessed as suitable for a Community Correction Order and I propose that you perform such an order. 

47In relation to the charge of attempted aggravated burglary, you are convicted and you are placed on a Community Correction Order for a period of two years. The conditions of this Community Correction Order include

(a)   200 hours of unpaid community work over that two-year period;

(b)   Assessment and treatment for drug abuse;

(c)   Assessment and treatment for programs to reduce reoffending – in particular I have in mind a men's behaviour change program; and also

(d)   Supervision.

48I will offset 100 hours of community work against the treatment. So that means if you engage in the men's behaviour change or drug counselling, any hours that you do in that counselling can be offset against the community work. So if you were to do 100 hours of counselling, that would reduce the community work that you are required to do to 100 hours.

49In addition to the conditions that I have imposed, there are standard conditions that you must comply with.  The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is two years.  You need to report within two working days to your nearest Corrections office, which I understand is Sunshine.

50You are required to advise your supervising corrections office of any change of address of where you are living or working within two clear working days.  And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the state of Victoria without their prior permission.

51Mr Rowcroft, if you reoffend you will breach the Correction Order, if you do not comply with the conditions you will also breach the Correction Order, and if you do that you will come back before me and you may be resentenced on the original charge of attempted aggravated burglary.

52I can only place you on a Correction Order if you agree – so do you understand what is involved in the Order?

53ACCUSED:  Yes, I do Your Honour.

54HER HONOUR:  Great.  Do you consent to doing such an order?

55ACCUSED:  Yes, I agree, yes.

56HER HONOUR:  All right, great.  We have got an Order drafted up for you and I will sign it and then get you to sign it and you will be free to go.

57ACCUSED:  Thank you very much, Your Honour.

58HER HONOUR:  All right, we will make a couple of copies of that for the parties.  So, thank you very much, gentlemen.  And Mr Rowcroft, I wish you all the best with the Order.

59ACCUSED:  Thank you, Your Honour.

60HER HONOUR:  I hope that it goes well and I wish you all the best in the future.  It seems to me that you have got a promising future ahead of you.  If you decide to put your head down and work and you have demonstrated that you can do that, so yes, good luck with everything.

61ACCUSED:  Thank you, Your Honour.  Thanks for your comments.

62HER HONOUR:  I hope Queensland works out all right.

63ACCUSED:  Thank you very much.

64HER HONOUR:  If that is what you decide to do. 

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