Director of Public Prosecutions v Sadlier-O'Connor

[2022] VCC 1960

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02611

DIRECTOR OF PUBLIC PROSECUTIONS

v

William Sadlier-O’Connor

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2022
DATE OF SENTENCE:	11 November 2022
CASE MAY BE CITED AS:	DPP v Sadlier-O’Connor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1960

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — aggravated burglary — intent to steal — in company — person present — offensive weapon — knife — causing injury intentionally — theft — possession of a drug of dependence — rolled-up charge — plea of guilty — early plea — COVID-19 — CCTV footage — remorse — victim impact statement — moral culpability — mandatory visa cancellation — prospect of deportation — alcohol abuse — substance abuse — drug abuse — cannabis — methamphetamine — chronic substance abuse disorder — depression — anxiety — criminal record — prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP (Vic) v Meyers (2014) 44 VR 486; R v Verdins (2007) 16 VR 269; Frost v The Queen [2020] VSCA 53; Maslen v The Queen [2018] VSCA 90; R v Vella [2014] VSCA 140; DPP (Vic) v Benson [2017] VSCA 148

Sentence:                  Total effective sentence of five years and nine months with non-parole period of four years

Section 6AAA declaration: total effective sentence of eight years with non-parole period of six years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Duckett	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C Pearson	Greg Thomas Barrister and Solicitor

HER HONOUR:

1William Sadlier-O’Connor, you pleaded guilty to the following charges: aggravated burglary with intent to steal and with an offensive weapon, which was a flick knife, in circumstances where a person was present, for which the maximum penalty is 25 years’ imprisonment; intentionally cause injury, for which the maximum penalty is 10 years’ imprisonment; a rolled-up charge of theft, for which the maximum penalty is 10 years’ imprisonment; and possession of a drug of dependence, a small amount of cannabis unrelated to trafficking, which carries a maximum penalty of five penalty units.

2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’ setting out the full facts and circumstances of your offending. CCTV footage was also tendered which partially captured your offending behaviour.

3Briefly stated, the facts of your offending are as follows. You were a member of a group of five men who on the night of 7 January 2021 at around 11:50pm broke into the home of Robert and Lisa Wilson. Mr and Mrs Wilson were at home with two of their children, aged 15 and nine, and two of their grandchildren, aged nine and five. Mrs Wilson was in a bedroom with one of the children when she heard strange noises and then male voices coming from the shed. She woke Mr Wilson, who told her to lock herself and the children in an upstairs bedroom and to barricade the door with furniture. Mr Wilson then called the Triple Zero service.

4At about this time, you and your co-offenders gained entry via the front door. You managed to open the security door and one of your co-offenders, who has been identified as Jadyn Kelly, kicked in the front door. Mr Kelly was also armed with a flick knife.

5All five of you entered the house. You searched the property. Mr Kelly found an imitation firearm in the garage and put it down the front of his pants. Another unidentified co-offender located alcohol in the fridge and took it out.

6At some point shortly after entering, the three unidentified co-offenders left the property, leaving you and Mr Kelly. At this point, Mr Kelly spotted Mr Wilson and threatened him with what Mr Wilson believed was his gel blaster gun, demanding money. You then punched Mr Wilson in the face. The punch caused Mr Wilson to fall back and stumble and as he tried to get back up, you hit him again, causing him to fall back on the stairs. Mr Wilson felt as if you had used something to punch him, as he was hit so hard.

7Both you and Mr Kelly kept asking where the money was. Mr Kelly grabbed the gold chain from around Mr Wilson’s neck and ripped it off before demanding his gold bracelet. You then punched him to the right side of his face either four or five times.

8Mr Wilson was able to get his bracelet off and threw it at you both. He was still lying at the bottom of the stairs at this point, trying to block you from going up the stairs to where his young family was hiding.

9Mr Wilson started throwing punches at both you and Mr Kelly, which caused you to run off, taking his necklace and bracelet with you. The other unidentified offender stole approximately $200 worth of alcohol from the fridge.

10Mr Wilson’s son attended to him once you had left, and police and ambulance officers attended shortly thereafter. Mr Wilson was taken to the Sunshine Hospital for treatment to his injuries. As a result of the assault, he required stitches to a cut above his eyebrow and sustained a fractured eye socket.

11You were identified as a suspect from DNA found on a cigarette butt at the property. On 17 February 2021, you were arrested at your home. The property was searched and a ziplock bag containing cannabis was located along with a Black Power hooded jumper, which was the jumper you were wearing when you committed the aggravated burglary.

12You were transported to the Melbourne West Police Station where a record of interview was conducted. During the record of interview, you exercised your right to make no comment in respect of the allegations. At the conclusion of the interview, you were remanded into custody.

13Turning now to your plea of guilty, you pleaded guilty on 8 December 2021. A contested committal was scheduled to have occurred on this day but the matter resolved before any evidence was called. You have always been prepared to resolve this matter. Mr Pearson, who appeared on your behalf, submitted that you made an offer to plead guilty to all the charges on the current indictment except intentionally cause injury as early as 8 June 2021.

14The prosecution rejected your early offers and pressed for pleas to the offences of home invasion and robbery. This matter has ultimately resolved largely in accordance with your initial offer and significantly to aggravated burglary rather than home invasion. In these circumstances, I regard your plea as a plea at the earliest opportunity. It has significant utilitarian value, especially given the ongoing effects on the administration of criminal justice caused by COVID-19 and I take that into consideration in sentencing you. I sentence you in accordance with the principles set out in the case of Worboyes v The Queen.[1]

[1] [2021] VSCA 169.

15By virtue of your plea, you acknowledge your criminal responsibility, and I am also prepared to accept your plea of guilty is indicative of some remorse on your part.

16Only one of your co-offenders has been identified and that is Jadyn Kelly. There was a sentence indication hearing at this Court on 31 August which failed to resolve the charges he faces. Accordingly, he is still intending to contest the charges he faces and no issues of parity arise in sentencing you.

17I turn now to the victim impact statements in this matter. Robert Wilson says that the offending has made him a different person. He says he still does not sleep through the night, and he is stressed from the moment he leaves for work until he gets home, in case something happens while he is not there. He says he is now very quick to jump to aggression. He says his vision has deteriorated. He says his two kids and his two grandkids are now in counselling and his younger son and grandson often sleep in his and his wife’s bed because they are scared to sleep alone. He says his 16-year-old son moved out because he did not feel safe in the house anymore.

18Brandon Wilson says he also struggles to sleep and has nightmares every night, so he is constantly exhausted. He says that for months, he would wake at 2am and call his sister crying because he was hearing things and thought someone was outside. He says he is constantly living in fear of every slight noise because it brings everything back.

19Lisa Wilson says this has had a massive impact on the whole family. She says her grandson Levi suffers anxiety and night wetting and has had to wear nappies, for which he was bullied at school. She says both Levi and Connor have nightmares about what happened. She says she has PTSD and still does not sleep through the night. She says she could not be at home alone for months after the offending. She says she no longer goes on walks at night and never goes upstairs in her own home unless another adult is home.

20Samantha Rees is Levi’s mother. She says Levi has gone backwards and his bright future has been wrecked. She says she cannot shower or go to the toilet alone anymore because Levi always has to be with her. She says that every time they go somewhere, Levi is scared that they will be locked in and unable to get out. She says Levi is scared the offenders will come back and hurt his family.

21I turn now to assess the objective gravity of your offending and your moral culpability. This aggravated burglary was committed at night, in company, on a family home in which there were children. You have offered no explanation for your offending other than you were intoxicated. I accept the prosecution submission that the victim’s home must have been targeted and that you knew it was a family home before you went in. The door was broken down to gain entry and Mr Kelly was armed with a flick knife.

22You entered with an intent to steal. However, as the courts have repeatedly observed, when armed and intoxicated offenders burst into a home in the middle of the night and confront the occupants, the situation is volatile and unpredictable and what follows can often involve serious violence. This is precisely what happened here, with Mr Wilson being subjected to a vicious assault perpetrated by you and your co-accused Mr Kelly.

23Your offending is characterised by many of the well-recognised aggravating features which make the offence of aggravated burglary such a serious offence.[2] It has had a profound effect on the victims and I regard your moral culpability as high.

[2] DPP (Vic) v Meyers (2014) 44 VR 486, 498 [48] (‘Meyers’).

24Your personal circumstances are set out in a report of Ms Gina Cidoni, psychologist, which was tendered at your plea.

25You were born in May 1990 and you are presently 32 years old. You were born in New Zealand and raised by your Maori parents. You reported a good relationship with your parents, although your father had a history of alcohol abuse and was violent at times during your childhood. Your parents separated when you were 10 years old.

26You attended school in New Zealand only until year 7. Thereafter, you have worked as a labourer and a factory worker. You were promoted to a team leader in your last job at a food processing factory and you were enjoying your work. You have always had regular employment.

27You were in a relationship with a woman called Hope from the age of 16 for 16 years. You have a son together, born in February 2014. You came to Australia in 2015. You settled first in Brisbane and then in Victoria. You are not an Australian citizen and you face mandatory visa cancellation if sentenced to a term of imprisonment of 12 months or more, although you may apply to have any cancellation overturned. This is relevant to the sentence I will impose.

28First, I take into account that the prospect of deportation renders a term of imprisonment more onerous. Secondly, that it destroys any opportunity to settle in this country. This is particularly momentous and difficult for you, as you have lived in Australia since 2015 and your son lives here and will continue to live here away from you if you are deported. I take these considerations into account in sentencing you.

29You have been a binge drinker since the age of 14. You have also used and abused cannabis and methamphetamines. You have never been treated for your alcoholism, but you told Ms Cidoni that you were keen to try and you are attending Alcoholics Anonymous in prison. Also tendered today were two certificates confirming your participation in alcohol and drug treatment programs. Ms Cidoni was of the opinion that you suffer from chronic substance abuse disorder. She was of the opinion that your risk of reoffending was linked to your drug and alcohol abuse.

30Ms Cidoni found you to have low verbal comprehension and communication skills likely referable to your lack of education, but she found you to have a sound average working memory. She found you to be chronically depressed and anxious. There was no submission made to me that Verdins principles were engaged in sentencing you,[3] but I take your mental health difficulties into consideration generally when assessing the effects of imprisonment upon you.

[3] R v Verdins (2007) 16 VR 269 (‘Verdins’).

31You have a limited criminal record. In this jurisdiction, your only prior is in the Magistrates’ Court on 21 March 2019 where you received an adjourned undertaking without conviction for the offences of criminal damage and unlawful assault.

32In Queensland, you have a 2016 conviction for entering a premises and committing an indictable offence, among other charges, for which you were sentenced to six months’ imprisonment. Mr Pearson informed me that this did not involve you serving a period of actual custody and you were, in fact, immediately released on parole. This is therefore your first time in custody.

33Ms Duckett, who appeared on behalf of the Director of Public Prosecutions, submitted that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period. Mr Pearson did not dispute that this was the case.

34Both parties provided me with comparative cases on the offence of aggravated burglary and which set out the relevant sentencing principles.[4] Those cases have been of some assistance in sentencing you. Ultimately, I must sentence you on the particular facts and circumstances of your case.

[4] See Frost v The Queen [2020] VSCA 53; Meyers (n 2); Maslen v The Queen [2018] VSCA 90; R v Vella [2014] VSCA 140; DPP (Vic) v Benson [2017] VSCA 148.

35This was appalling offending in which a family, including children, was terrorised in the family home. General deterrence, denunciation and community protection are all engaged in sentencing you. You must also understand the consequences of taking part in such disgraceful behaviour and specific deterrence is also a relevant sentencing consideration.

36I am prepared to assess your prospects of rehabilitation as reasonable. This was a shocking episode of criminality on your part, and you do have a relevant, although limited and much less serious, criminal history, but you now inevitably face a lengthy term of imprisonment, and the prospect of deportation has jeopardised your life in Australia and potentially your relationship with your son. Surely these consequences will cause you to address your drinking and to live offence free in the future.

37I take into account the current difficult conditions in prison given the ongoing restrictions in place to deal with the COVID-19 pandemic.

38Given all the matters I am required to take into consideration under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.

39On charge 1, aggravated burglary, you are convicted and sentenced to five years’ imprisonment.

40On charge 2, intentionally cause injury, you are convicted and sentenced to two years’ imprisonment.

41On charge 3, theft, you are convicted and sentenced to one year imprisonment.

42On charge 4, possession of a drug of dependence, you are convicted and discharged.

43Charge 1 is the base charge. I direct that six months of the sentence on charge 2 and three months of the sentence on charge 3 are to be served cumulatively on the sentence on charge 1 and upon each other.

44That makes a total effective sentence of five years and nine months. I am directing that you must serve a period of four years before you are eligible for parole.

45Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of eight years with a non-parole period of six years.

46Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 460 days of the sentence that I have passed upon you, and I direct that this be entered into the records of the Court.

47I make the disposal order sought by the prosecution.

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