Director of Public Prosecutions v Sawan
[2023] VCC 1426
•10 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00085
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW SAWAN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 August 2023 |
DATE OF SENTENCE: | 10 August 2023 |
CASE MAY BE CITED AS: | DPP v Sawan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1426 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Aggravated burglary - assault – common assault
Legislation Cited:
Cases Cited:DDP v Meyers [2014] VSCA 314,
Bradshaw v The Queen [2017] VSCA 273,
DPP v Ross [2016] VCC 219,
DPP v Unwin 2021 VCC 1621
Anderson v The Queen [2014] VSCA 255,
TS v The Queen [2014] VSCA 24,
McLean v The Queen [2018] VSCA 209
Mills v The Queen [1986] HCA 71
Boulton v The Queen [2014] VSCA 342Sentence:12 months' imprisonment and 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr D. White Ms A Dearman | Office of Public Prosecutions |
For the Accused | Mr J Anderson | Slaveski & Associates |
HIS HONOUR:
1Matthew Sawan you have pleaded guilty to an offence of aggravated burglary which took place on 26 February 2022. The maximum penalty for this offence is imprisonment for 25 years.
2You have also pleaded guilty to an offence of assault upon a male victim on the same date, for which the maximum penalty is imprisonment for five years.
3You have also asked me to take into account and have pleaded guilty to a related summary offence involving an assault on the same date upon your former female partner. The maximum penalty for that offence is imprisonment for three months.
4The prosecution has tendered and relied upon a summary of prosecution opening for plea which is Exhibit A. I am not going to read it to you in its entirety. But I intend to summarise it briefly.
5You were born on 18 September 1999 and were therefore 22 years of age at the time of the offending. You are now 23 years of age. You were at that time residing with your family at an address in Hoppers Crossing.
6The female victim was 20 years of age, had been your partner for a period of some years and with whom you have a daughter who is now two and a half years of age. Your female victim was residing at an address in Werribee.
7The second victim, a male aged 25, had been in a relationship with your female victim for approximately a month.
8On 26 February of 2022 your male victim attended the address of your female victim at about 8 pm and the two of them watched television in the living room for some time. At about 11.45 pm the two victims went to the bedroom at the back of the house. They lay on the bed. The female was positioned against the bedroom wall underneath a large window. The window blind was closed. About a minute after they lay down, they heard a loud noise and experienced the glass of the window above the bed shattering as you jumped through the window. You immediately started to punch your male victim to the face and head. He endeavoured to cover himself up as best he could but was unable to prevent you from continuing an assault upon him. You punched him a number of times to the head and body for a period of about 30 seconds.
9Your female victim tried to stop you from doing so and you pushed her away. As a result of the assault upon the male victim there were red marks to his body, cuts to his hand and small cuts from fragments of the shattered glass which had fallen upon him as a result of your entering the premises via the window.
10After you finished assaulting the male victim, he moved into the living room. You told him to, 'Get your shit and leave.'
11You also told him to ‘get out’. He put his shirt on and indicated to you that he was going. You then asked the male victim what his name was. He told you. You then asked him for his driver's licence. He gave it to you, fearing that you might further assault him if he did not. You used your mobile phone to take a photo of his driver's licence.
12It is clear that your purpose was to intimidate him into complying with your wish that he should not attend that address again.
13You were dripping blood from your hand which you had cut during the entry through the window. You started flicking blood around the house. The male victim started to walk towards the front door. You followed him and effectively marched him out of the house.
14Your female victim was near the bedroom, crying and screaming. You yelled to her words to the effect, 'I like this kid.'
15You said to your male victim, 'If you have a problem with me we'll sort it out. Don't go to the cops.'
16You continued to march your male victim out of the house. When you were outside the house you grabbed him by the shirt, pushed him against the wall and told him not come back to the house.
17You again told him not to call the police. He said that he would not do so. You then asked him which car was his. He motioned to a car parked on the street outside.
18Those actions were consistent with your intention of assaulting a person or persons within the property at the time of the entry and consistent with your overall intention of intimidating both your male and female victims in an effort to persuade them that the male victim should not attend those premises again.
19Your motivation was jealousy and to control the free choice of their continuing association. Your male victim went home. He took some photographs of the marks and cuts to his body.
20You walked back inside the premises through the front door which was by then open. You approached your female victim and grabbed her by the right arm. You told her not to contact the police and that if she did, the daughter of your relationship ‘would grow up without a father because you would end up in prison.'
21You then left the address. Police were called. They attended during the night and took a statement from your female victim. You were arrested on the following day at 3.08 pm. You participated in a recorded interview with police. You confirmed your identity but answered ‘no comment’ to all of the questions asked about the offending and your relationship with your female victim. You were then charged by police.
22Although a plea was not tendered at the first opportunity at the Magistrates' Court, your plea of guilty was indicated at a relatively early stage. You deserve credit for that.
23You have no prior convictions. You were remanded in custody for a period of 12 days following your arrest. You were then granted bail and you complied with the terms of your bail.
24There is no victim impact statement from either of your victims. Nevertheless, it is to be inferred that the events of 26 February 2022 would have been traumatic. The manner of your entry into the premises, landing effectively on top of them whilst they were on a bed beneath the window, the manner of your assaults upon each of them and your conduct towards them that night would have been extremely frightening. It would have left a lasting impression upon them.
25It is to be inferred that your conduct was calculated to, and indeed would have, instilled considerable fear in both of them.
26Your counsel provided me with written plea submissions dated 6 August 2023 along with a psychological assessment report from Dr Staios, clinical neuropsychologist, dated 7 August 2023 which is Exhibit 2.
27Exhibit 3 is a report from Peter Hanley, psychologist, concerning the consultations that he had with you commencing on 1 June 2022 and concluding on 22 July 2022, during which he provided you with some therapeutic consultations. He indicates that it is not clear why you ceased the treatment that he was offering you. I note that it was only for a period of some seven weeks that you engaged in that treatment with him.
28Exhibit 4 consists of certificates showing that you have taken part in an Anger Management Program and in a Men's Behaviour Change Program. You also received a certificate in June 2022 in respect of a Parenting After Separation course.
29Exhibit 5 consists of a bundle of 9 references from your parents, your sister, from friends, friends of family, the pastor of the Williamstown Gospel Mission and others, all of which speak of your otherwise good character, your personal qualities, the difficulties that you had growing up with education and your learning difficulties. They also refer to the added trauma of discovery of a chest condition that prevented you from participating in a competitive way in sport, leading ultimately to your leaving school part way through year 10 at the age of 16.
30There followed a period of severe depression during which you did very little for about two years, until you started to work with your father in his business and commenced an apprenticeship with him.
31You continued that work for four years until your recent incarceration. You have not quite completed, but have been close to completing, your apprenticeship during that period of time.
32I am told, and accept, that it is your intention to continue with and qualify fully by completing your apprenticeship. You would seek to pursue a career similar to that of your father.
33It is clear from all of the reports and the references that you come from a good family. You have had a good loving supportive upbringing. Undoubtedly you have had setbacks as a result of your learning difficulties and the physical issue that contributed to your period of depression and your leaving school at a relatively early age. But you have shown yourself to be a diligent worker and a decent human being during the period since you left school.
34You entered a relationship with your female victim when you were about 18. You now have a daughter who is two and a half years of age.
35The letters of reference suggest that you are a devoted father and that you would wish to spend as much time as you can with your daughter. Indeed that has been the pattern of your shared parenting with your female victim.
36Since 26 February 2022 there have been intervention orders that have prevented you from any contact with your female victim, or indeed your male victim. It is not suggested that you have breached either of those orders. You have been content to comply with the parenting arrangements that have been facilitated through your parents acting as an intermediary without you having any direct contact with your female victim.
37All of that would suggest that you have good prospects of rehabilitation.
38You counsel submitted that the offending was at the low end of the scale of seriousness. I don't accept that. It seems to me that this is a mid-range offence. You achieved everything you sought to achieve in the commission of the offences of aggravated burglary and assault upon your two victims.
39It must have been, as I have indicated, an extremely frightening experience and one which involved not just confrontational aggravated burglary, but also an intent to intimidate a former partner and to interfere with her right to choose her future male friends and associations.
40The courts have made it very clear that aggravated burglary is a very serious offence. Indeed, the maximum penalty of 25 years’ imprisonment also makes that very clear.
41A number of cases that have come before the Court of Appeal in Victoria have stressed the seriousness of offending against a former partner or in a domestic context, and the factors that come into play in determining the seriousness of the offending.
42Relevant in your particular case is your intent at the time of entry, namely, to assault a person or persons within the premises knowing or believing that there were persons in the premises. It was suggested by your counsel that you had gone there for the benign reason of discussing with her mother a birthday celebration for your daughter that was due to take place the following day. I don't accept that.
43The late hour of 11.45 pm and the manner of your entry indicate that your intention in being there at that time was quite different. You intended not just to assault but to intimidate your former partner and her male companion.
44The offence of aggravated burglary is to be distinguished from the offences of assault that you perpetrated upon your two victims. Having gained entry to the premises (and I am conscious of the need to avoid double punishment) the offence of aggravated burglary was complete upon your entry.
45The assaults occurred after the offence of aggravated burglary was complete. The nature of your conduct is relevant to the aggravated burglary in that it indicates the nature of your intent in gaining entry to the premises at the time of entry.
46In the case of DDP v Meyers [2014] VSCA 314 the court addressed the considerations that would ordinarily be relevant to an assessment of the seriousness of an offence of aggravated burglary. Amongst those factors were the offender's intent at the point of entry, the mode of entry, whether the offender was carrying a weapon (in your case you were not), whether the offender was alone or in company (you were alone), the time of day at which the burglary took place, what the offender knew or believed about who would be inside and where the persons would be at the time of entry.
47I infer as the only reasonable explanation that you were well aware that both your male and female victims were in the bedroom, and it was that fact that caused you to enter within a minute of them lying down on the bed.
48Another factor referred to by the court in the case of Meyers was whether the offender was someone of whom the victim was particularly frightened. There is no evidence that that is the case here. Nevertheless, the offending is truly to be regarded as in the mid-range of offending, albeit towards the lower end of the mid-range.
49You counsel rightly distinguished it from cases where there were aggravating features such as a weapon being used, there was more than one person engaged in the offending conduct, where the offending was more sustained and where more severe violence was used against the victims.
50Nevertheless, the offence itself was complete at the time of entry. What took place thereafter is relevant to determining the intent with which the offence was committed but is to be dealt with separately for the specific offences involved.
51I am satisfied that you have good prospects of rehabilitation and that you have learnt a significant lesson from your appearance in this court. As you indicated on the night in question, you expected that if you were apprehended for the offending that you would go to prison.
52I have been referred to a number of authorities which go to current sentencing practice, including the case of Bradshaw v The Queen [2017] VSCA 273 and two cases in this court: DPP v Ross [2016] VCC 219 and DPP v Unwin [2021] VCC 1621.
53I have also been referred to a number of authorities by counsel for the prosecution who tendered a prosecution outline of sentencing submissions, which is Exhibit B. Mr White, who appeared for the prosecution, developed the arguments contained in the prosecution outline of sentencing submissions. I accept by and large his characterisation of the offending. His submission was that the offending was of such a serious nature as to leave this court with no discretion other than to impose a sentence of imprisonment with a
non-parole period. In short, that would mean a sentence likely in the order of two years or more imprisonment with a non-parole period fixed that was appropriate in all the circumstances.54It was submitted on the prosecution’s behalf that a sentence involving either a community correction order, or a combined sentence of imprisonment with a community correction order is outside the court’s sentencing discretion and that the offending was too serious to avoid the conclusion that the sentencing considerations of just punishment, denunciation and in particular, general deterrence, militated against what was submitted would be too lenient a course.
55I was referred to the cases of Anderson v The Queen [2014] VSCA 255, TS v The Queen [2014] VSCA 24 and McLean v The Queen [2018] VSCA 209 as cases that were at least broadly comparable to the present case. Each of those cases involved sentences of the kind the prosecution sought to persuade me was appropriate in this case.
56What distinguishes your case from many others where substantial sentences of imprisonment have been imposed for aggravated burglary offences and associated criminality, is your youth. You are 23 now, not far short of 24. And the offending occurred when you were 22 years of age.
57I was also referred to a number of cases which involved the exercise of discretion based on youthful offending and to cases where the principles enunciated in Mills v The Queen [1986] HCA 71 had been applied in mitigation of sentence.
58I was also referred to Boulton v The Queen [2014] VSCA 342, being a case where the Court of Appeal sanctioned the use of community correction orders, even in serious cases which would otherwise have resulted in quite substantial terms of imprisonment.
59All of these are factors that I have to take into account in the overall sentencing discretion. It is necessary for me to balance your lack of prior convictions, your good prospects of rehabilitation, your good family background, your family support, your work record, your ambitions and your position as a father of your two-and-a-half-year-old daughter in determining what is a just sentence in this case.
60The prosecution submissions are right in that ordinarily a case of this nature would result in a term of imprisonment with a non-parole period. The only factor that causes me to pause in determining to impose such a sentence is your age.
61It is well recognised by the courts that persons of your age are less likely to exercise a degree of discretion that an adult would exercise in similar circumstances, and that therefore reduces moral culpability.
62I have found it quite difficult to balance those factors in this case. It seemed to me, frankly, that the offending itself did warrant a term of imprisonment of at least two years and more with a non-parole period. But I have come to the conclusion that the case can be dealt with by way of a combined sentence, that is, a term of imprisonment with a community correction order.
63I will come to sentence you in a minute. But I cannot impose a community correction order without your consent. It is necessary therefore for me to identify for you the terms of the proposed order and to seek your consent.
64I have no doubt that your counsel Mr Anderson has been through the prospective terms of a community correction order with you in some detail and that he will have discussed the question of consent. However, it is necessary for me to deal with the terms of the proposed order.
65The order that I have in mind would be for a period of 18 months and commence at the conclusion of your term of imprisonment. You would be required to attend the Derrimut Community Correctional Services at 360 Foleys Road, Derrimut, Victoria within two clear working days after the commencement of the order.
66The mandatory terms of the order, that is, terms which apply to all community correction orders are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations, which involve such things as not turning up to appointments or to unpaid work commitments drunk or drug-affected and other such things;
- you must report to and receive visits from the Secretary of the Department of Justice or his/her delegate;
- you must report to the community corrections centre to which I have referred within two clear working days of the order starting;
- you must let a community corrections officer know within two clear working days of you changing your address or job;
- you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his/her delegate; and
- you must obey all lawful instructions from, and directions of, the Secretary of the Department of Justice or his/her delegate.
67In addition to those mandatory terms, another term that I have in mind to impose, which is substantially directed at providing punishment for the offence the subject of Charge 2 on the indictment (the offence of assault upon your male victim) along with additional punishment appropriate for the offence the subject of Charge 1 (the aggravated burglary) would be that you must perform 150 hours of unpaid community work over the period of 18 months during which the order is in force as directed by the regional manager. If you fail to comply with that order, the Secretary of the Department of Justice or his/her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
68In addition, you would be required to participate in and undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
69It has not been suggested that any of the Verdins principles apply in this case. However, the report of Dr Staios and indeed the assessment report from Forensicare support the notion that you present with a mild mental health impairment and that you would benefit from engagement with a psychologist who could continue to assist you in understanding your emotions, thoughts and behaviours and establish improved coping mechanisms.
70That is designed to reduce your risk of committing further offences. It is designed to assist you. I think it likely that in any event you would have pursued that option voluntarily with the support of your parents. It is there to assist you back into the community after what will undoubtedly be a traumatic experience of being incarcerated for these offences.
71I stress that if you commit an offence punishable by imprisonment during the period when the order is in force, then you are likely to be brought back to this court, probably before me, and you may be re-sentenced for the offences the subject of the indictment and the transferred summary charge. It would be open to me or the judge who is dealing with the matter to impose a further term of imprisonment by re-sentencing you for the offences.
72You would also be in jeopardy of a term of up to three months imprisonment for merely breaching the terms of the community correction order.
73All of those are factors which no doubt you have discussed with
Mr Anderson. Mr Anderson, I take it that you would support what I have just said?74MR ANDERSON: Yes.
75HIS HONOUR: Are you satisfied your client understands the terms of the order that I have outlined to him?
76MR ANDERSON: Yes, there won't be any surprises in what Your Honour has outlined.
77HIS HONOUR: Yes.
78MR ANDERSON: It's been indicated to me that there would be consent to such an order.
79HIS HONOUR: Yes, thank you. Mr Sawan, do you understand the terms of the order that I have just outlined?
80OFFENDER: Yes, Your Honour.
81HIS HONOUR: Are you willing to comply with the terms of that order?
82OFFENDER: Yes, Your Honour.
83HIS HONOUR: I will take your indication as sufficient evidence of your consent to participate in the order and I will sign it myself and we will treat it as having been signed by you.
84I now proceed to impose a sentence upon you.
85Matthew Sawan, in respect of Charge 1 on the indictment of aggravated burglary. I convict you and sentence you to imprisonment for a period of 12 months.
86I declare 14 days of pre-sentence detention as time be reckoned as served on that sentence to be deducted administratively from the sentence I have imposed.
87On that charge and on Charge 2 on the indictment and in relation to the related summary offence I also impose a community correction order with conviction for a period 18 months in the terms that I have outlined to you, involving 150 hours of unpaid community work and a condition of treatment and rehabilitation in relation to your mental health.
88I note that in conformity with the recommendations of Corrections, I have reduced from what is often the case, the conditions that are imposed in relation to the community correction order. I do not, for example, require you to be under supervision during that period in accordance with the specific recommendation of Corrections.
89The total effective sentence therefore is imprisonment for 12 months.
90But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years with a non-parole period of two years.
91Are there any other matters that I need to take into account or deal with?
92MS DEARMAN: No, Your Honour.
93MR ANDERSON: No, Your Honour.
94HIS HONOUR: Thank you. I have now signed the order, Mr Sawan. The order contains an indication that your agreement and consent has been obtained by audio-visual link. You will be provided with a copy of the order.
95In addition to the matters I have dealt with specifically, I give you full credit for your pleas of guilty. I note that the pleas have been indicated and tendered during the period during which the COVID pandemic is still having an effect on the environment in which you will be incarcerated. That is likely to make the time that you will be serving your period of imprisonment more difficult. I have taken that into account in the overall sentencing process.
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