Director of Public Prosecutions v Sanderson, Brendan
[2012] VCC 1865
•6 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01170
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN SANDERSON |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2012 | |
DATE OF SENTENCE: | 6 December 2012 | |
CASE MAY BE CITED AS: | DPP v Sanderson, Brendan | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1865 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Plea – Sentence – Burglary – Theft – Aggravated burglary – Common law assault – Related summary offending.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Harper (Ms G. Hirsch at sentence) | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn (Ms A. Stephanides at sentence) | Andrew George & Associates |
HER HONOUR:
Introduction
1 You may remain seated, Mr Sanderson. I will read my sentencing remarks and then I will ask you to stand when I get to the point where I need to sentence you finally.
2 You have pleaded guilty to two charges of burglary and three charges of theft, the maximum penalty for each of which is 10 years’ imprisonment; one charge of aggravated burglary, the maximum penalty for which is 25 years’ imprisonment; and one charge of common law assault, the maximum penalty for which is 5 years’ imprisonment.
3 You have also pleaded guilty to a related summary offence, transferred from the Magistrates’ Court by consent. This comprises one charge of deal with proceeds of crime, the maximum penalty for which is 2 years’ imprisonment.
4 The offending occurred on 4 and/or 5 March 2012.
Antecedents
5 You are 37 years of age. You have admitted an extensive and relevant criminal history involving prior appearances between 29 April 1991 and 15 September 2008, with numerous sentences of imprisonment imposed since 1993. The most recent of these was for aggravated burglary with an offensive weapon, theft and go equipped to steal offences in 2007 and obtaining financial advantage and property by deception offences in 2008. I was told that the offensive weapon used in the aggravated burglary was a screwdriver used by you to gain entry to a milk bar with intent to steal.
6 I was told that, having been released on 8 November 2011, you were on parole when these offences were committed. The Adult Parole Board cancelled the parole order. You have already served the 7 months and 19 days owed under the earlier sentence. There is pre-sentence detention to be declared in respect to the current offences which I will declare shortly.
The circumstances of the offending
7 The prosecution’s opening was read into transcript and tendered as an agreed statement of facts.
8 I do not propose to repeat in full the prosecution’s more detailed summary. However, the summary of agreed facts has been copied and marked as an attachment to my reasons for sentence, with the information identifying the victims and their whereabouts removed.
9 As to Charges 1 and 2, the burglary and theft offences, on Sunday, 4 March 2012, you entered via a rear door an apartment located in a block of apartments a short distance from your residence in Carlton. You stole Malaysian currency, a computer and a laptop bag, a Nintendo DS console, a camera, an iPhone, a mobile phone charger and jewellery, a gold necklace and jade bracelet, all valued at the time at approximately $2,210.
10 Following your arrest the next day, among the items located at your home, police found the Nintendo DS console and the jade bracelet.
11 You have consented to the making of an order for compensation in the sum of $2,433 in favour of the male victim, and allowing for his victim impact statement, declared on 29 October 2012, in addition to his financial losses, this victim probably did, as he reported, suffer a mixture of anxiety, fear and stress which, until recently, impacted on his sense of security and severely affected his lifestyle and commitments as a university student.
12 As to Charges 3 and 4, further burglary and theft offences, on Monday, 5 March 2012, you forced entry into another apartment in the same block from where you stole another laptop computer, valued at $1,500.
13 As to Charges 5, 6 and 7, aggravated burglary, common law assault and theft offences, on 5 March 2012, shortly after the commission of the burglary and theft offences relating to Charges 3 and 4 on the indictment, the male victim, who was working alone in an apartment in the same block of apartments, chose to ignore your repeated knocking and banging on the door.
14 You apparently kicked open the front door. As you moved around the living room, the victim said that he opened the bedroom door and yelled to you to “fuck off”. However, instead of leaving immediately, you drew a knife, described by the victim as being a large silver butcher's knife with a blade that appeared to be 2.5 inches wide and 5 to 8 inches long, pointed this weapon at the victim and approached him in a threatening manner.
15 Not surprisingly, the victim reported taking refuge in the bedroom and, whilst he held the door closed, you demanded money and questioned him about whether he had a laptop.
16 On this occasion, you stole the victim’s mobile telephone and his wallet containing his licence and credit and other cards and paperwork, as well as between $30 and $80 in cash.
17 The aggravating feature of this burglary offence was that you brandished a knife. It was not alleged, however, that when you entered the apartment you knew someone was present.
18 In view of the circumstances in which these offences occurred, the incident probably was, as the male victim stated, a very traumatic episode. His victim impact statement, declared on 11 November 2012, makes this very clear, as well as indicating that, following the offending, he failed the subjects he was studying at the time and gave up university, possibly for good.
19 You were first interviewed on 5 March 2012, after being picked up by police on Villiers Street, North Melbourne whilst carrying a white plastic bag in your right hand. It appears that, as police approached, you tried to conceal the plastic bag containing a laptop computer belonging to the victim of the burglary and theft offences, Charges 3 and 4 on the indictment, by kicking the bag underneath a police vehicle.
20 When physically searched, you were also carrying the mobile phone belonging to the victim of the aggravated burglary, common law assault and theft offences, Charges 5, 6 and 7 on the indictment.
21 Notably, when interviewed by police, you admitted committing the burglary offences but denied producing a knife. You also provided information to the police which enabled them to locate the wallet belonging to the third victim, which you had previously discarded in a nearby street.
22 When your home was later searched, apart from the items already mentioned, police found two kitchen knives, one of which was located on your bed, and an iPod, the latter the subject of the deal with proceeds of crime, related summary offence, Charge 9.
23 I was told that, subsequent to your release on parole in November 2011, subject to one unacceptable absence on 15 February 2012, you met the conditions of your parole order and, over a three month period, you had successfully participated in a drug and alcohol counselling program via Caraniche. However, when you re-offended, you were still awaiting entry into a support program designed to reduce your offending behaviour.
24 Subject to obtaining your White Card, you had also been promised employment as an unskilled labourer and, for the first time, you were living in your own accommodation with a steady partner, although she too reportedly has a history of chronic heroin use.
25 You apparently told psychologist, Mr Cummins, to whose recent report I will refer in more detail shortly, that you first relapsed by using heroin after attending a friend’s funeral. However, it seems that the spate of offending in early March 2012 followed a relapse into drug abuse some 10 days earlier. According to your counsel, on this occasion, you were offered and used half a gram of “ice”. This led to 4 to 5 days without sleep and further heroin use to counter the effects of the crystal methylamphetamine.
26 In any event, I was told that, after relapsing into drug abuse you sought help from your general practitioner, who prescribed Xanax and Valium.
27 By your account, you have little recall of these crimes, particularly the offending on 4 March 2012 because, at the time, you were significantly substance affected both due to the earlier drug abuse and, having had an argument with your partner, as a result of your abuse of the prescribed medication, Xanax, which you reported taking with alcohol.
28 I was told that, despite not being able to recall this, you have since accepted that you produced a knife in the commission of the aggravated burglary, common law assault and theft offences on 5 March 2012.
Gravity
29 On your behalf, it was submitted that these offences, committed without any attempt to disguise yourself, were not sophisticated or particularly well-planned crimes. The offending was nevertheless opportunistic and evidenced some level of planning and method in that you targeted a number of apartments in the same block over successive days, as well as particular items of property. The entry into the third apartment whilst armed with a knife was violent and, instead of leaving when it became apparent that the apartment was occupied, you threatened the occupant with a knife, which, if used, had the potential to cause significant physical harm.
30 In assessing the gravity of each offence, where known, I have also taken into account the value of the property involved and the fact that each offence was committed during a period of parole. Allowing for these matters, the reported circumstances and the likely impact on each of the victims, I have assessed the objective gravity of the aggravated burglary, the burglary, the theft, the common law assault and the deal property offences as being at the lower end of the scale for these types of offences.
31 By your early admissions and plea of guilty, you have facilitated the course of justice. The prosecution has accepted that your early plea of guilty, subsequent to the committal hearing at which the third victim was required to give evidence, calls for a significant discount in your sentence to reflect its utilitarian value in saving witness attendance at a contested trial or trials and in saving the community the cost that might otherwise be expended in running a trial or trials.
32 The plea and the early admissions also evidence some level of remorse, about which I will say more shortly.
Personal Circumstances
33 Your personal circumstances were summarised in your counsel’s oral submissions and Mr Cummins’ report, dated 20 November 2012. A bundle of certificates relating to a number of courses undertaken by you whilst in custody since March 2012 was also tendered.
34 I was told that you were born in Wonthaggi. Your parents are still alive. Until recently, your father had a history of significant substance abuse. Your mother, to whom you reported being close, now lives in Western Australia.
35 You have one brother who continues to support you, as was evident from his attendance at the plea hearing and today. You are also supported by your mother, although her last visit to you was during the recent period of parole when, for the first time in 13 years, you also had contact with your father.
36 It appears that your parents separated when you were about 4 years of age. From between the ages of 9 and 12 years, you were brought up by your father, your mother having left you in his care. By all accounts, these formative years were marked by deprivation and dysfunction due to your father’s significant substance abuse. There was also a period in foster care prior to returning to your mother’s care from the age of 12, by which stage the damage had already been done.
37 You told Mr Cummins that you dropped out of school at around the age of 14 ½ or 15 years. Moreover, having spent most of your life from your late teens moving in and out of custody, you have not established yourself in regular employment of any kind.
38 You report a significant substance abuse history, which included intermittent binge drinking, smoking cannabis from approximately age 13 until some 12 to 15 years ago and, for a limited period during your teens, using amphetamines intravenously. However, your most serious addiction, both in the community and in custody, appears to have been to heroin, which you told Mr Cummins you had used intravenously over the past 12 to 15 years.
39 You are evidently very angry about and frustrated by your further relapse into drug abuse and related offending. In Mr Cummins’ opinion, however, it is significant that, for the first time, you have requested prescription of methadone and that, for the past two months, you have taken 50 mg of this synthetic opiate daily. This therapy has, no doubt, helped you maintain the abstinence you report maintaining whilst in custody.
40 Unfortunately, one consequence of what your counsel described as your history of ‘institutionalisation’ is that you have struggled to reintegrate into the community and, when released, you have reoffended very quickly. On this occasion, you managed some 3 to 4 months before reoffending. However, this time, you reported finding it very difficult to readjust to further custody because you feel stuck in an endless cycle. This response to custody is something your brother has also noted.
41 Mr Cummins has assessed a likely Borderline Personality Disorder which, in his view, probably helps explain some of the confusion you feel about maintaining your relationship with your partner, who has not been permitted to visit you because of her own record. In any event, I was told that you now consider the relationship to be over.
42 Notably, Mr Cummins felt that, during his assessment, you presented both as remorseful and regretful and that you appeared motivated to pursue rehabilitation.
43 Obviously, you and the community would benefit from your successful reintegration into the community in the future. One way of achieving this is the imposition of a non-parole period to allow the Adult Parole Board an opportunity to consider your supervised release with access to relevant programs and, if available, a residential drug rehabilitation program, which Mr Cummins believes is the most likely factor to facilitate rehabilitation. And as you know, Mr Sanderson, that really is the hands of the Adult Parole Board, and also, it is a question as to whether or not such a program would be available to you if and when they decide to release you on parole.
44 These matters notwithstanding, I have accepted as accurate Mr Cummins’ conclusion that your prospects of long-term rehabilitation are guarded. Indeed, in circumstances where lengthy gaol terms have not been a deterrent, I consider the current risk of drug related re-offending to be high.
Sentencing Principles
45 In this case, the prosecution submitted that the appropriate sentencing range fell between five and six years’ imprisonment with a non-parole period of between three years and six months’ and four years and six months’ imprisonment.
46 On your behalf, it was conceded that the offending called for the imposition of an immediate term of imprisonment and that some cumulation was warranted to reflect three separate episodes of offending and the different victims involved. However, your counsel nevertheless urged a more lenient outcome.
47 You have been in custody since 5 March 2012. Apart from the pre-sentence detention for this offending, most of this period has been spent completing your earlier sentence. It was acknowledged during the plea hearing that this additional period in custody and the total period of further custody imposed for the multiple offences committed in March must, with some moderation, result in a sentence that is just and appropriate in all the circumstances.
48 To determine the appropriate range for sentencing in respect to, particularly, the burglary and the aggravated burglary, I have also considered the Sentencing Snapshots for these offences covering the period 2006 to 2012 and published in June 2012. During this period, 129 people were sentenced for burglary and 740 people were sentenced for aggravated burglary.
49 In respect to burglary, imprisonment terms ranged from one month to 5 years. While the median sentence of imprisonment was one year and 3 months, the most common length of imprisonment imposed was one year to less than 2 years and the average length of imprisonment imposed was from one year and 3 months to one year and 9 months. Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period was one year and 9 months and the most common non-parole period imposed was one year to less than 2 years.
50 In respect to aggravated burglary, imprisonment terms ranged from 3 years to 12 years. While the median sentence of imprisonment was 2 years, the most common length of imprisonment imposed was 2 years to less than 3 years and the average length of imprisonment imposed was from one year and 11 months to 2 years and 10 months. Where eligible to have a non-parole period fixed, the Snapshot indicates that the median length of the non-parole period was one year and 6 months and the most common non-parole period imposed was one year to less than 2 years.
51 Whilst the analysis of sentences contained in the Snapshots I have referred to is informative, your sentence has been formulated having regard to the limited evidence of your circumstances and to the circumstances of the offending as known.
52 The sentence imposed must take account of the prevalence of drug related burglaries, thefts and associated offending and the fact that the aggravated burglary offence involved a violent invasion of a residential unit.
53 In all, the sentence must punish you as well send a very strong deterrent message to other individuals and, to the extent that this is possible, the sentence must also act to protect the community from a recidivist offender.
Sentence
54 Please stand, Mr Sanderson.
55 On one charge of aggravated burglary, that is Charge 5, you are convicted and sentenced to three years and six months’ imprisonment. For the purpose of your sentence, I treat this as the base sentence.
56 On each of two charges of burglary, Charges 1 and 3, you are convicted and sentenced to 15 months’ imprisonment.
57 On each of two charges of theft, Charges 2 and 4, you are convicted and sentenced to 6 months’ imprisonment.
58 On one charge of common law assault, Charge 6, you are convicted and sentenced to 6 months’ imprisonment.
59 On one charge of theft, Charge 7, you are convicted and sentenced to 4 months’ imprisonment.
60 On the related charge of dealing with proceeds of crime, you are convicted and sentenced to one month’s imprisonment.
61 I direct that 5 months of each of the sentences imposed on Charges 1 and 3, 3 months of each of the sentences imposed on Charges 2 and 4, 2 months of the sentence imposed on Charge 6 and one month of the sentence imposed on Charge 7 be served cumulatively on the sentence imposed on the aggravated burglary charge, Charge 5. The sentences are otherwise concurrent.
62 The total effective sentence is 5 years and one month’s imprisonment, with a non-parole period of 3 years and 6 months’ imprisonment, and the sentence starts today.
63 Pursuant to s18(4) of the Sentencing Act, I will declare a period of pre-sentence detention when counsel tell me what that is.
64 MS STEPHANIDES: 43 - - -
65 HER HONOUR: Well, I'll hear from the Crown, thank you.
66 MS HIRSCH: 43 days not including today.
67 HER HONOUR: And you stand when you address the bench.
68 MS HIRSCH: Sorry, Your Honour.
69 HER HONOUR: 43 days not including today. And you agree with that?
70 MS STEPHANIDES: Yes, I do, Your Honour.
71 HER HONOUR: Thank you.
72 Pursuant to that provision, Mr Sanderson, I declare that the period of 43 days not including today is to be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be recorded in the records of the court.
73 Under to s6AAA of the Sentencing Act, I indicate that, but for your plea of guilty a sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment would have been imposed.
74 A disposal order and a compensation order were sought at the plea hearing. Those orders were not opposed. They have been signed by me today, and as noted at the plea hearing, a copy of the report of Mr Cummins, dated 20 November 2012, was sent to the prison authorities on 22 November to assist them in monitoring any mental health and treatment issues that are currently impacting on you.
75 Counsel, are there any other matters that I need to clarify or deal with?
76 MS HIRSCH: No, Your Honour.
77 HER HONOUR: Thank you. Please remove Mr Sanderson.
78 PRISONER: You know what I don't understand, Your Honour, right, I'm – I made a mistake, all right, my fault. In 24 hours, this happened, right. I'm trying to rehabilitate myself, right, I had drugs and I could have taken it, I didn't take it, all right, I know (indistinct) right, I did something wrong, I cop that, but I'm not a murderer, I don't stick guns in people's faces. There's a bloke at Port Phillip now, five with three for manslaughter, you know what I mean, for manslaughter, man, and I'm not killing no one.
79 HER HONOUR: Thank you. Please remove the prisoner.
80 PRISONER: I don't hurt people, man. All right, I've made mistakes in me life. I don't deserve that long, man, I'm more or less doing 10 years, I was (indistinct) four months. (Indistinct) I know I made a mistake, I'm me own worst enemy, and I'm – (indistinct ) hard to say that. Now, you know how many times I hit that mirror when I look at my face, you got no idea, look at my knuckles, they're stuffed, right, and (indistinct) like this - - -
81 HER HONOUR: Mr Sanderson, the Prison Officer is ready to take you out.
82 PRISONER: (Indistinct) make mistakes, (indistinct) made bigger mistakes and he's going to get the same sentence, say armed robbery, you know what I mean.
83 MS STEPHANIDES: Might I approach the dock?
84 PRISONER: (Indistinct) blokes that kill people get less than me.
85 MS STEPHANIDES: Might I approach the dock, Your Honour. I might be able to assist.
86 PRISONER: Fucking unreal, man, I'm getting sick of this.
87 HER HONOUR: Sorry?
88 MS STEPHANIDES: Might I be able to approach the dock?
89 HER HONOUR: No. It's a custody management issue now, Ms Stephanides.
90 PRISONER: (Indistinct) a stabbing one, (indistinct) murder and they get less than me.
91 (Prisoner removed).
92 Thank you for your patience. And thank you, Mr Sanderson, for your patience as well. Please adjourn the court.
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Attachment “A”
Summary of Prosecution Opening
Charge 1 –Burglary & Charge 2 – Theft
Between 1.30 pm and 8pm on Sunday 4 March 2012 the accused man Brendan Sanderson gained entry to apartment … via a rear sliding door.
Once inside the apartment, the accused stole Malaysian currency; an ACER laptop computer; a black laptop bag; a Nintendo DS console; a Canon camera; an Apple iPhone; a Blackberry mobile phone charger; a gold necklace; and a jade bracelet belonging to … valued at approximately $2210.00 in total. (Depositions pp 50 - 51)
… immediately reported the incident to police who attended the scene the following morning at approximately 8:35am (depositions pp 50-51 & 61-63).
Charge 3- Burglary and Charge 4 – Theft
Between 2:30pm and 3:20pm on Monday 5 March 2012 the accused forced entry to apartment …, via a back window.
Once inside the property, the accused disturbed numerous items of property and stole a metallic silver “Mac Pro” laptop computer belonging to the victim, … and valued at $1,500.00 (depositions pp 52-54 & 64-67).
… immediately reported the incident to police who attended the scene at approximately 4:15pm that afternoon (depositions pp 52-54 & 64-67).
Charge 5 – Aggravated burglary & Charge 6 – Common law assault &
Charge 7 - Theft
At approximately 3:20pm on 5 March 2012, victim … was in his bedroom inside apartment …. … heard repeated knocks and banging at his door but did not get up to open the door. … then heard a loud crack coming from the front door and then heard someone rushing around his living room. … then opened his bedroom door and yelled out “fuck off, what are you doing here?” (depositions pp 2–14, 16-17 & 37).
Standing approximately 2 metres away from the complainant, the accused drew a knife from his right side which he held in his right hand. … felt intimidated by the knife which he describes as being a large silver butcher’s knife with a blade which appeared to be 2.5 inches wide and 5 – 8 inches long with an irregular handle. The accused held the knife up in a threatening manner and pointed it towards … as he walked towards him. Frightened, … returned to his bedroom, closing his bedroom door and keeping a hold of the door handle (depositions pp 14 - 27 & 37).
… could hear the accused moving around the apartment and repeatedly told him to leave. The accused demanded money from the victim who stated he didn’t have any. The accused asked the victim if he had a laptop and the victim replied that he didn’t. The accused then left the apartment (depositions pp 22, 27 & 37-38).
… eventually left his bedroom and discovered that the accused had stolen his ‘Motorolla ATRIX 2’ mobile telephone and his wallet containing identification, driver’s licence, 3 debit cards, his Medicare card, an electronic key to his apartment, a silver door key, other paperwork and between $30.00 and $80.00 in cash. … also noticed that the front door frame was severely damaged, with parts of the door frame and door handle on the ground and splintered wood on the floor (depositions pp 20 & 27 & 38).
… contacted his friend, witness …, via an online computer program who contacted police on his behalf (depositions pp 27- 28, 38, 42 & 57-60). Police attended the scene at approximately 4:15pm and observed damage to the front door (depositions pp 64-67).
Arrest and interview
At approximately 4:00pm on 5 March 2012, the accused was located by Police on Villiers Street, North Melbourne carrying a white plastic bag in his right hand. He kicked the white plastic bag underneath the police vehicle as police approached. The bag contained the laptop computer belonging to … (depositions pp 29 – 31 & 46-49).
The accused was arrested and searched. Located in his clothing was the mobile phone belonging to …. The accused was then conveyed to North Melbourne police station where he participated in a taped record of interview. (depositions pp 30, 46-49 & 68).
During the interview the accused admitted that he committed each of the burglaries; stated that he returned home and changed his clothes following the third incident but denied having produced a knife. (depositions pp 31, ROI Q & A 34 – 115, 127 – 131, 143 – 188).
The accused informed police that he discarded the wallet belonging to … in Courtney Street North Melbourne where it was later located, together with its contents (depositions pp 30, 68- 70, ROI Q & A 116 – 119, 181 - 202).
Later on 5 March 2012 police searched the accused’s home. They located 2 kitchen knives, one on his bed. Also located was the Nintendo DS consol and jade bracelet belonging to victim …
Related summary offence – deal with proceeds of crime
During the search of the accused’s home police located an iphone, an ipod and a Sony camera suspected of being the proceeds of crime (depositions pp 32 - 35, 46-49 & 68-70).
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