Director of Public Prosecutions v Sadlier

[2018] VCC 2147

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00809

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM SADLIER

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2018
DATE OF SENTENCE:	14 December 2018
CASE MAY BE CITED AS:	DPP v Sadlier
MEDIUM NEUTRAL CITATION:	[2018] VCC 2147

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary; Contravene family violence intervention order intending to cause harm or fear; Theft; Assault with a weapon; Plea of guilty; Intimate relationship ‘burglary’; Sentencing principles relevant to family violence; Verdins considerations; Expectation of deportation.

Legislation Cited:                 Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:R v Verdins & Ors (2007) 16 VR 269, Filiz v R [2014] VSCA 212, TS v R [2014] VSCA 24, Saxon v R [2014] VSCA 296, DPP v Milne [2016] VCC 296, DPP v Bowden [2017] VCC 133.

Sentence:  Total Effective Sentence – 2 years 6 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Ms K. Rolfe	Victoria Legal Aid

HIS HONOUR: 

1Mr Sadlier, you remain seated, if you would.  William Sadlier, you have pleaded guilty to one charge of aggravated burglary, one charge of contravening a family violence intervention order intending to cause harm or fear and one charge of theft. You have also pleaded guilty to a related summary offence of unlawful assault with a weapon.

2At your plea hearing the prosecutor, Mr Albert, tendered a summary of prosecution opening which set out the details of your offending.  Briefly summarised that offending involved the following:

3You had previously been in a defacto relationship with the victim of these offences for a period of 12 years.  There are six children of that relationship aged between three and 11 years of age.

4On 11 January 2018 your former partner was granted a final family violence intervention order against you.  The conditions of that order prohibited you from committing violence against her and prohibited you from being within 200 metres of any place where she resided.

5As at 24 January 2018 your former partner was living with some family friends in the Hoppers Crossing area.  Present in the home on that morning was your former partner together with an adult couple and their four children.

6At around 4 AM that morning the victim woke and decided to go to the toilet.  As she got out of bed she saw you jump from the bed next to hers.  She saw that you had two butchers knives in your hands.  Your entry into the home in those circumstances constitutes the first charge of aggravated burglary.

7Once you and the victim were in the hallway, you moved behind her and held the two butchers knives to her throat.  You told her to be quiet and to walk towards the front door.  As you reached the front door the victim sat on the bottom opposite stair.  You then said to her “If you don’t get up and come with me I’ll kill you”.  In order to keep you calm the victim agreed to leave with you.

8The 14 year old daughter of the couple with whom the victim was staying heard some noise and came downstairs to see what was happening.  She saw you holding the knives about 1 cm from the victim’s throat.  The 14 year old girl ran past you and shoved you as she did so.  Your former partner seized the opportunity to grab the knives you were holding.  In doing so she sustained a small cut to her right hand.  That conduct, in part, constitutes Charge 2, being the contravention of the family violence intervention order and the summary offence of assault with a weapon.

9The 14 year old girl yelled out to her mother, “Mummy, mummy, there’s a man out there with knives”.  As you walked out the door, the victim tried to push the door shut with the assistance of the 14-year-old girl.  The mother of the 14 year old came downstairs and saw the victim struggling to close the door.  She also saw her daughter help close that door and lock it.

10After you left, your former partner noticed that her mobile phone which had been left on her bedside table, was missing.  Taking that phone constitutes the theft which is the third charge on the Indictment.

11Police attended shortly afterwards and observed some damage to the front door and a cut on the webbing of the victims hand, her right hand.  Your former partner was visibly distressed and shaking uncontrollably at that time.

12Police then attended at the address at which your vehicle was registered.  They found that the engine of your car was hot and the tyres were warm.  You were arrested at about 4:45 AM on 24 January 2018 and taken back to Werribee police station.  Police observed blood on two of your knuckles which you tried to rub off.  Photographs were taken of your hand.

13During the course of your record of interview with police, you indicated that you had worked until 2:30 AM and after arriving home had watched television with your brother.  You otherwise provided no comment as to these allegations.  On that day you were remanded in custody and you have remained in custody in respect of this matter since that time.

Impact of offending

14Turning to the impact of your offending, a victim impact statement was provided by your former partner which was read aloud in court by the prosecutor.  What you did has had a profound effect on the victim.  At the time she feared for her life and even now, 11 months on from this incident, she constantly feels frightened and on edge.  It has adversely affected her work, her peace of mind and her ability to move on with her life.  She has needed to seek professional help in coping with her anxiety and the way that you have made her feel.  She still struggles to manage and is only slowly rebuilding her life.

15You should understand that the impact of what you did to your former partner is an important consideration to be taken into account in formulating the sentence which must be imposed.

Personal Circumstances

16Turning to your personal circumstances, you are of Maori heritage having been born on 20 November 1982.  You are now 36 years of age, 35 at the time of the offending.

17You were born in Palmerston on the North Island of New Zealand and spent a good deal of your childhood helping out on your father’s farm which was located in the Levin area of the North Island.  Your mother died in 2013 however your father, who is retired, lives in Hoppers Crossing.  He has visited you on remand and attended court to support you on your plea.  You have two brothers and one sister.  One of your brother’s resides in Melbourne.

18You did well enough at school to complete Year 12.  Not long after you left school you joined the army and undertook overseas service on peacekeeping missions to East Timor, the Solomon Islands and Iraq.

19After 6 years of service you were honourably discharged and returned to civilian life working as a truck driver.  You did that for a year and then came to settle in Australia in 2008.  You continued to work as a truck driver here in Australia for most of the time with John Camilleri who gave impressive evidence on your plea.

20Mr Camilleri owns a transport company which operates 6 trucks with 5 drivers doing contract work for poultry companies.  He described you as being his ‘main’ or ‘top’ driver.  He regards you as a friend as well as an employee.  He explained that in the time leading up to January 2018 he noticed that you were making uncharacteristic mistakes and looked stressed.  When he was told that you had been remanded in custody, he visited you at least 6 times and spoke to you over the phone.

21He says that he has seen a lot of change in you.  He believes you have done a lot in custody to improve yourself.  He said you were a good man who was very remorseful and had learnt a valuable lesson.  He said that when you are released you will be able to work for him again.

22The only enduring relationship you have had is with your former partner, the victim of this offending.  You were together for 12 years and, as I indicated, there are 6 children of the relationship.  In addition your partner had a son from a previous relationship.  Your oldest child and the step-child live in New Zealand, the younger five are currently cared for by their maternal grandparents under arrangements made through the Department of Health and Human Services.

23Your relationship with the victim of this offending started to deteriorate from about 2013 and was exacerbated by your binge alcohol abuse and gambling.

24It is of some significance that although you have only one prior conviction it is for a matter that is directly relevant to this offending.  On 15 February 2016 you were placed on an undertaking to be of good behaviour without conviction and ordered to pay $500 to the court fund, for charges of criminal damage and contravening a Family Violence Safety Notice.  The circumstances were said to have related to throwing a baby cot on the ground and smashing it.  That matter occurred in October 2015.

25About 3 years ago, the 2 year old daughter of your former partner’s cousin was being minded in your family home when she fell out of her high chair and died.  That tragedy led to an investigation with the result that your 5 children were placed in the care of the Department of Health and Human Services.  This offending occurs on the anniversary of that death.  In gaining entry to the home where your partner was staying, you say that you wanted to speak to her about what happened to the child on the day of her death. 

26Your psychiatric health is of some concern and is documented in two reports from Dr Nina Zimmerman, psychiatrist of 18 October 2018 and 13 November 2018.

27In August 2017 a mental health plan was formulated to help you cope with anxiety and depression.  You made two attempts on your life in August and November 2017 in the setting of your relationship with your former partner breaking down.  After the November incident you were hospitalised for two days and discharged to commence anti-depressant medication.  You did not persist with that medication because of its potential to affect your work as a truck driver.

28In prison you have experienced auditory hallucinations including hearing the voice of the child who died in your care.  Dr Zimmerman also noted a family history of major psychotic and mood disorder.  She formed the view that you have experienced an episode of major depression associated with suicidal ideation.  She states in her later report of 13 November 2018,

"I believe that Mr Sadlier has experienced an episode of major depression associated with suicidal ideation.  Evidence for this includes is history of low mood, developing on a background of gambling, financial difficulties and relationship conflict and triggered by the death of his niece in complicated circumstances.  He has a number of perpetuating factors that place him at risk of ongoing mood, disturbance, suicidal thoughts, including his loss of contact with his children, the loss of his relationship, his financial problems flowing from his gambling and his fear that he may be deported.  Despite this, he appears to have responded to his anti-depressant medication and did not appear to be depressed when I met with him.  I believe Mr Sadlier has a history of major depression, currently in remission.  Mr Sadlier has described auditory hallucinations in prison.  These have been present in a fluctuating fashion at times of distress.  He has no history of psychotic symptoms outside of an episode of depression.  I believe that Mr Sadlier's psychotic symptoms are best understood as part of his depression occurring in a vulnerable individual.  I note that he has been prescribed low dose anti-psychotic for sleep and agitation and this seems to have been of assistance.  Depression is most often a relapsing and remitting disorder and as noted, Mr Sadlier has a range of factors that place him at risk of relapse".

29At paragraph 11 of her report, Dr Zimmerman continues,

"The offending occurred on a day of great psychological significance for Mr Sadlier, the anniversary of the death of his death.  He appears to have been greatly agitated on top of his enduring depression over this period and reported being determined to talk to [the victim] about what had happened on the day of the death of his niece.  He also reported hearing the voice of his niece telling him to talk to her but, as if often the case, this appears to have been a reflection or reinforcement of his own thoughts.  He stated that he'd gone to Jessica's place of abode from work, rather than in an intoxicated state.  In terms of the impact of his mental state on the offending, depression is associated with difficulties thinking and concentrating, which when combined with his agitated state, is likely to have impaired his ability to make calm and rational decisions.  Mr Sadlier gave a description of shame regarding his offending, expressed in physical terms an 'ugliness in my chest and stomach'".

30You were arrested and remanded in custody on 24 January 2018 and have thus served 324 days in custody in relation to this offending.

31You have used that time constructively.

32You were admitted to the Erskine Unit at Ravenhall prison on 12 May and remained there until 18 July.  That facility was described as a subacute unit providing specialist mental health care.  You there engaged in 12 individual psychology sessions and 10 group based treatment sessions. Your treatment focused on managing intense emotions and coping skills.

33You then applied for, and you were accepted into, the Moroka program at that prison which consists of a 12 week voluntary therapeutic program directed to helping those with mental health problems build life skills such as developing and maintaining positive relationships, anger management and conflict management, dealing with trauma, drug and alcohol education and managing emotions, among other things.  A number of certificates were tendered confirming the work you have done.  A report from the Moroka Program Manager, Dr Gregg Shinkfield of 7 November 2018 describes you in the following terms:

“William has been an enthusiastic member of the program, attending all groups and doing all homework required.  He has demonstrated to the treating team that he has learned a lot of worthwhile skills, and has been practicing utilizing them.  He has been a positive role model for other patients and a model prisoner.”

34It was also submitted that as a New Zealand citizen you will be deported to New Zealand if a sentence of imprisonment of 12 months or more is imposed.  The burden of imprisonment would, it was argued, be greater for you if you serve your sentence in expectation of being deported.  That would be so because you will also lose the opportunity to settle in Australia, which in your case would constitute significant punishment given that you have resided in this country since 2008; given that you have 5 young children in Australia; given that you have had, and can continue to have, stable employment; and given that your father resides here.

35Ms Rolfe, who put an excellent plea on your behalf, submitted that the principles in R v Verdins & Ors (2007) 16 VR 269 case were applicable here having regard to Dr Zimmerman’s opinion. She argued that in light of all of the matters I have set out, that a sentence of imprisonment combined with a Community Corrections Order should be imposed.

36Mr Albert, who appeared on behalf of the Director, submitted that the only appropriate disposition for this offending was a term of imprisonment with the fixing of a non-parole period.

37He referred me to a number of cases which dealt with offending which is sometimes characterised as ‘intimate relationship burglary’.  Those cases were Filiz v R [2014] VSCA 212, TS v R [2014] VSCA 24, Saxon v R [2014] VSCA 296, DPP v Milne [2016] VCC 296 and DPP v Bowden [2017] VCC 133.These cases have some limited utility in providing something of a yardstick for comparison bearing in mind that every case must turn on its individual facts.

38One general principle from those decisions that might be discerned is the seriousness with which family violence is now viewed. It was referred to in two particular passages in Filiz where Maxwell P and Redlich JA said at paragraph 23,

"It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.  It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners".

39At paragraph 21,

"Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage.  It goes without saying that such a response, to what is a common human situation, is utterly unacceptable.  This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection".

40Mr Albert submitted that I should not tailor your sentence so as to attempt to avoid your deportation.  Any sentence imposed in these circumstances was, he submitted, is very likely to be caught by the provisions of the Commonwealth Migration Act and, subject to the exercise of ministerial discretion, will result in deportation.  He acknowledged however, that there was some basis for the application of the Verdins principles but only to modest affect.

41As I understood his submission any combined sentence allowing for the service of a community corrections order would very likely be frustrated, but in any event was not appropriate.

Findings

42In my view your impaired mental functioning as described by Dr Zimmerman does attract the application of the principles in Verdins case.  There seems little doubt that you suffered from a serious depressive illness in the lead up to this offending and in the wake of the separation from your partner.  The intensity of your depressive/psychotic symptoms as subsequently observed in custody supports that conclusion.

43I am satisfied your depressive condition was connected with and contributed to your offending behaviour.  The grief and blame associated with the death of the 2 year old girl in your care appears to have intensified the symptoms of your condition and to some extent distinguishes your conduct from that of a man motivated purely by possessive rage.  I note also that your mental health condition will render your time in prison more burdensome, as will the prospect that you will be deported.  Accordingly, I accept Ms Rolfe’s submissions in this regard.

44That finding allows for some reduction, albeit modest, of your moral culpability and the emphasis on general deterrence.  Whilst there will also be some moderation of specific deterrence – that sentencing purpose still remains important given that you have a relevant prior offence.

45The work you have done in custody to address your mental health, and what is likely to have been the causes of your offending, has been impressive, as Dr Shinkfield confirmed.

46On the other hand the impact of what you did to your former partner continues to afflict her.  Arming yourself with butchers knives, breaking into her residence in the early hours of the morning, holding those knives to her throat and threatening to kill her is, to adapt what was said in Filiz, “utterly unacceptable”.

47Despite the problems with your mental health, as I have indicated, I must be conscious that you have, in the past, breached a family violence safety notice and that this offending involves a more serious breach of a family violence intervention order where you intended to cause harm or fear.

48Ultimately, I have determined that this offending is too serious to be dealt with by imposing a community corrections order in combination with a term of imprisonment.  I have come to the view that the only appropriate sentence is the imposition of a term of imprisonment with a non-parole period.  I should say however, that in fixing that non-parole period I have had particular regard to your mental health condition, your remorse and the rehabilitative work that you have undertaken in custody.

49Given the circumstances and the fact that the offences form, or are part of, a series of offences of the same or a similar character arising out of the same incident I have determined to an aggregate sentence.

50Mr Sadlier, would you please stand?

51On each of the charges of aggravated burglary, contravening a family violence intervention order intending to cause harm or fear, theft and the related summary offence of unlawful assault with a weapon you will be convicted and sentenced to an aggregate term of 30 months imprisonment.  I will fix a
non-parole period of 15 months imprisonment.

52I will further declare that 324 days of pre-sentence detention has already been served with respect to that sentence and I will cause that declaration to be entered in the records of the Court.

53I will also declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced to a total effective sentence of 4 years with a non-parole period of 2 years and 6 months.

54I should also explain, Mr Sadlier, that I have determined to make an order that you provide a forensic sample to the police.  You will be asked to provide a sample.  If you refuse to do so, I should advise you that the police may be entitled to use reasonable force.  You can take a seat now.

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