Director of Public Prosecutions v Schaeffer

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-20-00719
CR-20-00720

DIRECTOR OF PUBLIC PROSECUTIONS

IAN SCHAEFFER

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JUDGE:	O'Connell
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2020
DATE OF SENTENCE:	24 September 2020
CASE MAY BE CITED AS:	DPP v Schaeffer
MEDIUM NEUTRAL CITATION:	[2020] VCC 1502

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:              Home invasion; Elderly female victim; Serious example of the offence of home invasion; Firearm and drug offences; Offending committed whilst offender on bail; Early plea of guilty; Remorse; Upbringing characterised by trauma and significant disadvantage; Prospect offender will become institutionalised; Denunciation; Just punishment; Deterrence; Considerations relevant to COVID-19 restrictions in custody; Rehabilitation; Supervision on parole.
Legislation Cited:      Firearms Act 1996; Sentencing Act 1991; Drugs, Poisons and Controlled Substances Act 1981.
Cases Cited:Director of Public Prosecutions v Schaeffer [2004] VSC 536; R v Schaeffer [2006] VSC 434; DPP v Williams and Godfrey [2020] VSC 483.
Sentence:                  Total effective sentence of 7 years and 3 months’ imprisonment, non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr M. McGrath	Sarah Tricarico Lawyers

HIS HONOUR:

Introduction

Ian Schaeffer, you have pleaded guilty to the following charges:
·     One charge of being a prohibited person in possession of a firearm;
·     One charge of home invasion;
·     Two charges of theft of a motor car;
·     One charge of being a prohibited person in possession of an imitation firearm;
·     One charge of cultivating a narcotic plant, namely Cannabis L; and
·     One charge of possession of a drug of dependence, namely Lysergic Acid.
You have also pleaded guilty to four related summary offences, namely possession of cartridge ammunition, driving unlicensed and two charges of committing an indictable offence whilst on bail.
On the plea, Mr Cookson, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a summary of prosecution opening for plea. Mr McGrath, who appeared on your behalf, accepted that the summary accurately described the circumstances of your offending and could properly form the factual basis for sentence. What follows is largely based on that summary.

Circumstances of offending

On 9 November 2019, Ms Nazzerina Iulianella, who was 75 years old, was at home with her husband Claudio in Raleigh Street, Westmeadows. Ms Iulianella and her husband own and work at the Westmeadows IGA Supermarket. At about 4am, Claudio left for work, leaving Ms Iulianella alone in the house.
About an hour and a half later, you and two unknown males attended the victim’s address and forced your way inside through the front door. You were all wearing black clothing with black balaclavas covering your faces. Shortly afterwards, you all made your way to the first floor of the residence where Ms Iulianella was grabbed by the shoulder and shaken awake. She was terrified.
Demands were made for money as the cupboards and drawers in her bedroom were searched. Ms Iulianella said she had no money other than a small amount in her wallet, however none of you took that cash.
You stayed with the victim whilst the two other offenders searched the upstairs bedrooms, living room, dining rooms and kitchen for valuables. The victim described you as being relatively calm, and the two co-offenders as more aggressive and swearing. Throughout the incident Ms Iulianella was referred to as ‘Nancy’. At no time did she tell any of you her name. Ms Iulianella is known to members of the community who shop at her IGA as Nancy.
When Ms Iulianella requested to use the bathroom you permitted her to do so. She said that she was not feeling well, so you went and got her a glass of water from the kitchen. After some time, you directed Ms Iulianella to sit at the bottom of the main staircase whilst the others continued to search the house for valuables.
You located a car key which belonged to the victim’s BMW sedan in a jacket pocket near the front door. Ms Iulianella told you that if you were going to take the car, she needed to get some medical paperwork out. You both went to the garage and you removed the paperwork from the car and handed it to her. You then went back to the car and drove away.
The victim did not see how the other two offenders left the house. This incident, which lasted approximately 15 minutes, constitutes Charge 2 on the Indictment – home invasion. The theft of the victim’s car constitutes Charge 3 – theft of a motor vehicle.
At 5:45am, Ms Iulianella called her son and told him what had happened. He immediately called ‘000’. Police attended at the victim’s home and seized a hammer, screwdriver, a band-aid and a black ladies jacket, all of which were swabbed and tested for DNA. Preliminary DNA results in relation to the band-aid were later obtained which indicated the presence of your DNA.
On 11 December 2019, you were the subject of covert surveillance by police. Surveillance operatives observed a white Bentley motor vehicle with false registration plates parked in the driveway of your home address in Eumarella Street, Tullamarine. Jessica Middleton, your de facto partner, was seen getting into the driver’s seat, and you got into the passenger seat, before driving away. The Bentley was followed to Southgate Avenue, Southbank, where you switched positions with Ms Middleton and then drove onto Little Lonsdale Street where you were arrested by members of the Special Operations Group.
Police located the key to Ms Iulianella’s BMW in your possession. That car was located, fitted with false number plates, parked close to your residence in Tullamarine. Indeed, CCTV footage from neighbouring properties captured you arriving in that stolen BMW on 9 December 2019 within minutes of the home invasion.
Analysis of the contents of Ms Middleton’s phone located two recordings. The first recording was made on 2 November 2019. It showed you driving a Bentley with Ms Middleton in the front passenger seat, pointing a handgun out of the driver’s window. Later that same month, on 23 November 2019, you were again filmed by Ms Middleton standing and firing the same handgun into an open area. These two incidents comprise Charge 1 on the Indictment – being a prohibited person in possession of a firearm. You are a prohibited person as defined in s 3 of the Firearms Act 1996, because you have previously served a term of imprisonment of not less than five years for an indictable offence.
Investigators discovered that the Bentley you had been driving had been stolen by three unknown offenders from Carways Vehicle Transport Storage Facility in Truganina on 17 October 2019. Your possession of that stolen car constitutes Charge 4 on the Indictment – theft of a motor vehicle. A search of the car located an imitation assault rifle and what was described as a FLIR device, a forward looking infra-red camera, in the passenger footwell. Your possession of the imitation assault rifle constitutes Charge 5 on the Indictment – being a prohibited person in possession of an imitation firearm.
Later that same day, a search warrant was executed at your address. Some of the items located included:
·     A room set up to cultivate cannabis with an electrical bypass in place containing nine mature cannabis plants [Charge 6 – cultivate a narcotic plant];
·     A black balaclava;
·     A Luis Vuitton bag containing ammunition, a box of ‘Fiocchi’ ammunition, 25 loose rounds of ammunition and one loose shotgun round [Related summary offence – possess cartridge ammunition];
·     Lysergic Acid (LSD) in the form of orange tabs within a zip lock bag [Charge 7 – possess a drug of dependence];
·     A black case containing photographs of you pictured with the Bentley; and
·     The registration plates belonging to the Bentley.
You were interviewed by police on 12 December 2019 and made the following denials:
·     That you do not own a BMW;
·     That you do not reside at 2/63 Eumarella Street, but you have stayed there;
·     That you were just in the wrong place at the wrong time;
·     That there is no way there was paperwork in your name at the house;
·     That you were not involved in a home invasion two days previously;
·     That ‘I don’t do – I don’t burg houses’;
·     That you didn’t know the car you were driving was a stolen car;
You otherwise made no comment.
As to the cultivation of cannabis charge, I am not satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking. Accordingly, the higher maximum penalty of 15 years imprisonment will apply. However, with respect to the possession of the LSD, I am satisfied that offence was not committed for any purpose related to trafficking. Accordingly, the lower maximum penalty of 1 year imprisonment will apply.
At the time of this offending, you were on bail for charges of possessing anabolic steroids which were listed at the Wodonga Magistrates’ Court on 11 December 2019. By committing the home invasion, and stealing the car the subject of Charge 4, you also committed the two related summary offences of committing an indictable offence whilst on bail.
In addition, you were not licensed to drive, your license having expired on 9 November 2019. Your driving on 11 December 2019 constitutes the related summary offence of unlicensed driving.

Victim impact

In her victim impact statement, Ms Iulianella described, in quite a measured and understated way, how she had worked hard with her husband all her life to build a future for her children and a home where they would feel happy, safe and content. All of that was shattered by the experience she endured when you and your co-offenders invaded her home. As I have said she was terrified. Now, she no longer feels safe in the home that she thought of as her sanctuary. She has trouble sleeping and will clearly take a long time to recover.
You should understand that the impact of your offending on Ms Iulianella will be an important factor in formulating the sentence that must be imposed.

Procedural history

Turning to the procedural history of this matter, you were arrested and charged with this offending on 11 December 2019 and have remained in custody since that time. In May 2020, you indicated that you would plead guilty to these matters. There can be no question that you entered your plea at an early stage in the proceedings and that you are therefore entitled to a substantial reduction in the sentence that would otherwise be imposed.

Personal history

You were born on 26 June 1990 and are now 30 years of age. You were 29 when you committed these offences.
You have had, to say the least, an unfortunate upbringing.
Your father was sentenced to 16 years’ imprisonment in 2004 for a murder to which you were a witness. You were left severely traumatised. Your mother suffered depression, drank heavily and was unable to adequately parent you or your two younger sisters. In that setting, your behaviour deteriorated and ultimately led to substance abuse, offending and periodic terms of imprisonment.
You spent your early childhood years in Taylors Lakes in what was a comparatively happy environment without family conflict. You developed a particularly close relationship with your father with whom you enjoyed activities such as boxing, dirt bike riding and camping. All that changed when your parents marriage broke down towards the end of your primary schooling.
After the separation you went to live with your father in Wodonga. He commenced a relationship with a woman whose previous partner had become violent and threatening. In the early hours of 21 June 2003, the previous partner attended at the front of the house in which you were then staying. He was in breach of an intervention order and was threatening. Your father went outside and in the ensuing confrontation killed him. The circumstances of that killing and the reasons for imposing sentence were described by Cummins J in DPP v Schaeffer[1] and, after a retrial, by Coldrey J in R v Schaeffer[2]. Thereafter, as a young boy you were only able to see your father at monthly prison visits. He was just recently released.
[1] [2004] VSC 536.
[2] [2006] VSC 434.
Your father’s incarceration had a marked effect on you. A psychologist, Ms Lisa Jackson, assessed you for the purposes of your plea on 6 July 2020, and in her report of 10 July 2020, she refers to the impact in these terms:
The impact of the incident left Mr Schaeffer severely traumatised and he went on to develop a Post-Traumatic Stress Disorder. He moved back to live with his mother and sisters, the adjustment was difficult, his mother had developed an alcohol dependency problem sometimes drinking to the point of collapse, there was often no food in the house, she became verbally and emotionally abusive blaming Mr Schaeffer for his father’s conviction. In response, Mr Schaeffer’s behaviour deteriorated, he became depressed, anxious and angry and this was a trigger to a history of offending initially committed to pay for food and other goods needed by the family.[3]
[3] Report of Lisa Jackson dated 10 July 2020, at [8].
Both your mother and father provided written references which were tendered on your behalf. Each blame themselves for what they describe as your tough upbringing. They each appear now to have recovered and rehabilitated. They appear willing to assist and support you in any way they can.
In 2005, when you were 15 years of age, you moved out of your mother’s home, stopped going to school and commenced working at the local meat works. Perhaps reflecting your domestic instability, there were multiple appearances before the Children’s Court between 2005 and 2007. Even so, you were able to maintain reasonably consistent employment. You were employed at the Wodonga meat works for about 14 months when you were 15 to 16 years old. You worked as a plumbers labourer for seven months when you were 17, and then in an auto wreckers yard for eight months when you were 18, and also as a plasterer for approximately 20 months when you were between the ages of 20 and 22.
After your father’s incarceration, you continued to attend the gym where he had trained and you started boxing at an amateur junior level. You had 16 amateur fights with 15 wins before you turned 17. You had to stop boxing after suffering a serious eye injury in a wake boarding accident in 2008. Ms Jackson conducted a preliminary test as to your cognitive functioning. She identified mild cognitive impairment which suggested that further neuropsychological testing should be considered to confirm or clarify those results.
Overlaying the problems you experienced growing up has been the development of a dependence on drugs. From your mid-teens to about the age of 21, you used drugs such as ecstasy, amphetamine and cannabis mainly in social settings. However, you were introduced to methamphetamine whilst in custody at around the age of 22 and, despite some periods of abstinence, your abuse of that drug provided the setting for the commission of these offences.
You have a significant criminal history which includes offending that is not unlike the matters for which you must now be sentenced. Between the ages of 18 – 21 you appeared before the Magistrates’ Courts for various assault and dishonesty offences, ultimately receiving a period of detention in a Youth Training Centre and thereafter, on 3 November 2011, a 12 month term of imprisonment with a non-parole period of 6 months for charges of being a prohibited person possessing a firearm, handling stolen goods, harassing a witness and recklessly causing injury. You served much of that sentence at Fulham prison in the same unit as your father.
You were released from that sentence on 26 March 2012 and successfully completed the parole period. However, on 28 September 2012 you were apprehended near a liquor shop in Wodonga which you planned to rob with another offender. You had been observed by police conducting a reconnaissance of those premises and police took steps to remove the staff from the shop. At around about 10pm that night, you and your co-offender put stockings over your heads and tried to enter the premises. You were arrested by members of the Special Operations Group and you were found in possession of a loaded .22 revolver.
On 28 May 2013, his Honour Judge Punshon sentenced you to a total effective sentence of 6 years imprisonment and fixed 3 years and 9 months as the non-parole period. You were released on parole on 9 November 2016 and for a time did well working as a house painter and complying with strict parole conditions. However, you were breached on your parole in March 2017 for associating with your former co-accused, although you did not reoffend. You completed drug and anger management courses and due to good behaviour you were sent to a lower security prison. You eventually decided not to re-apply for parole and completed the remainder of your sentence on 1 January 2019. Once released, you were not subject to any supervision.
You commenced a relationship with your current partner, Jessica Middleton, who had been an old friend of yours from Wodonga. By mid-2019 you had unfortunately recommenced abuse of methamphetamine and prescription medication and over the later months of that year that abuse escalated.

Defence submissions

Mr McGrath explained with respect to this offending that you had been approached by others to participate in a burglary. You were informed that the residents owned a business and kept money in a safe in the house, and that they would not be home at the time of burglary. You instructed that you had observed a car leave the driveway of the house and assumed that the occupants had left. Your counsel emphasised that, unlike your co-offenders, you had attempted to calm the victim during this ordeal by accommodating her with a glass of water, providing her with her medication paperwork and the like.
You were remanded in custody on 11 December 2019. Mr McGrath emphasised much of that period has been spent under the restrictive conditions imposed by the COVID-19 pandemic. In particular you have no access to programs or the library, all personal visits have ceased and time out of your cell has been limited to two or three hours per day. You are allowed one video call per week with your partner and two 12 minute phone calls per day. Beyond those considerations, you are subject to the additional stress and concern posed by the risk of contracting COVID-19. Mr McGrath relied particularly on the comments of Lasry J in DPP v Williams and Godfrey[4] at [69], [73] and [74].
[4] [2020] VSC 483, (‘Williams and Godfrey’).
Written references supportive of you were also provided by your partner Ms Middleton, her mother and your younger sister Kristin. They confirmed that when you were released at the beginning of 2019, you made a genuine effort to turn your life around, but found it difficult to cope and over time relapsed in to drug abuse. Your brother-in-law also provided a written reference confirming that he would be prepared to employ you in his concreting business when you are eventually released. I have taken all of those references into account.
Your assessing psychologist suggested that your history of custodial sentences is rapidly resulting in problems associated with institutionalisation making it more difficult for you to manage stability in the community.[5] Nonetheless, Mr McGrath submitted that you have some prospects of rehabilitation given your work history, the support of your parents and partner, the fact that you have at times been able to abstain from drug abuse, the fact that you entered a plea of guilty at a very early opportunity and are clearly remorseful for what you have done. You have only recently turned 30 and still have the prospect of a productive life available to you once you are released.
[5] Ibid n 3 at [42].

Your counsel submitted that the total effective sentence imposed should not be crushing nor should it consign you to institutionalisation. A ‘longer than normal non-parole period’ was justified, it was said, given that you have some prospects of rehabilitation and would clearly benefit from extended supervision.

Prosecution submissions

In his submissions on behalf of the prosecution, Mr Cookson pointed to a number of features of the offending which underlined how very serious it was. There was clearly a degree of planning involved in carrying out this home invasion. The victim was a 75 year old woman who was particularly vulnerable, alone in her own home. The way in which the offences had been carried out had a significant impact on her. It was pointed out that you were also on bail for possession of a drug of dependence at the time you committed this offence.
Counsel also referred to your numerous previous criminal convictions, some of which were particularly relevant to the sentencing exercise, but acknowledged that you had entered an early plea of guilty, had shown remorse and appeared to have some prospects of rehabilitation, albeit guarded.
As to the sentencing considerations relevant to the pandemic, the prosecutor accepted that I should have regard to the restrictions to which you have been subject in custody thus far and the stress to you and to those close to you generated by the prospect of you becoming infected in custody.
Mr Cookson, however, cautioned against taking into account possible future restrictions in custody because that would amount to engaging in speculation. As I understood his argument, and I may have misunderstood it, there will always be a degree of uncertainty as to what restrictions will be put in place to deal with the pandemic and such restrictions as may be imposed are likely to be offset by the deduction of emergency management days from your sentence. In essence therefore, you should not receive any mitigation of your sentence for future restrictions because that involves speculation and you will receive a benefit from the prison authorities in any event.

Consideration

I accept the prosecutor’s submissions as to the seriousness of this offence. This is unquestionably a serious example of the offence of home invasion.
As Mr Cookson pointed out, the victim of this offence was a particularly vulnerable 75 year old woman who was alone, asleep in her house in the early hours of the morning. She was woken by three men clad in black, wearing balaclavas covering their faces and demanding money aggressively. She was understandably terrified.
You were not as aggressive and threatening as your co-offenders and I accept that you attempted to effectively calm the victim, but the fact is once you realised the victim was present in the house, you chose to remain whilst the others rummaged through the victim’s bedroom and the rest of the house swearing and behaving aggressively. It was an ordeal for Ms Iulianella that lasted something like 15 minutes and culminated in you stealing her car.
There was also an element of professionalism associated with this offending as can be gauged from the planning that must have been involved and the use of disguises.
Moreover, the impact on the victim has been significant. Her home, as she said in her victim impact statement, used to be her sanctuary, now she no longer feels safe there.
The offending is further aggravated by the fact that you were on bail at the time you committed that offence. To avoid the prospect of double punishment, however, you will not be additionally punished for the two related summary offences of committing an indictable offence whilst on bail.
The additional offending to which you have pleaded guilty being the firearm offences, the theft of the Bentley motor vehicle and the drug offences suggest that you had, by November/December of 2019, descended into a lawless lifestyle that would inevitably lead to you returning to custody.
Your previous criminal history is also of concern, particularly the attempted armed robbery which you committed in September 2013. It is a history which tends to preclude leniency and attract emphasis on specific deterrence.
It is to your credit however, that you chose to plead guilty at an early stage in these proceedings and have shown some genuine remorse. Your plea of guilty is also important because it has saved the community the expense of a trial and the victim the further ordeal of having to give evidence.
You had a traumatic upbringing in which you were deprived of the sort of basic needs and opportunities that most members of our community would take for granted. Evidently, you are still dealing with that trauma.
Despite that, Mr McGrath was, I think, right to emphasise the support you have from family and your partner, your relatively stable work history and the periods of time where you appear to have been able to abstain from drugs, to suggest that you still have prospects for rehabilitation.
I accept your counsel’s submission that, once you are eventually released from prison, you will still have a lengthy period of productive adult life available to you and that extensive supervision on parole represents the best chance of achieving rehabilitation. The sentence I will impose will attempt to facilitate that objective to the extent possible, albeit that I must balance that objective against other competing sentencing purposes, in particular, deterrence, denunciation and just punishment.
In formulating sentence, I must also take into account the sentencing considerations brought into focus by the pandemic. Whilst in custody you will live in an environment where you cannot control with whom you come into contact. Your ability to take precautions against the risk of infection is limited. Those factors generate stress and anxiety. Your time to exercise outside your cell is likely to be significantly limited. You cannot have personal visits. Telephone or video communication is limited. Courses and like activities have been suspended. Prison is at this time much more burdensome. As Lasry J remarked in Williams and Godfrey:
One can only imagine how much more onerous a prison lockdown must be for those that have the misfortune to be there.[6]
[6] Ibid n 4 at [74].
Those matters are relevant now and will remain relevant in the short to medium term. In my view, it is not speculative, as at mid-September 2020, to suggest that the measures necessary to control the pandemic will continue to be necessary for some time to come, and that prison authorities will be reticent to ease restrictions within the prison system until community transmission is very much under control. Consistent with s 5(2AA)(a) of the Sentencing Act 1991, I do not think it appropriate that I should take into account the possibility that your sentence may in some way be reduced by the deduction of emergency management days. In formulating sentence I have proceeded on that basis.

Sentence

Taking all relevant matters into account you will be sentenced as follows:
On Charge 1, prohibited person possess firearm, you will be convicted and sentenced to 8 months’ imprisonment.
On Charge 2, home invasion (intent to steal), you will be convicted and sentenced to 6 years and 6 months’ imprisonment.
On Charge 3, theft of the BMW motor vehicle, you will be convicted and sentenced to 9 months’ imprisonment.
On Charge 4, theft of the Bentley motor vehicle, you will be convicted and sentenced to 9 months’ imprisonment.
On Charge 5, prohibited person possess imitation firearm, you will be convicted and sentenced to 1 month imprisonment.
On Charge 6, cultivate cannabis, you will be convicted and sentenced to 4 months’ imprisonment.
On Charge 7, possess a drug of dependence (LSD), you will be convicted and sentenced to pay a fine of $150.
On the related summary offences you will be sentenced as follows:
On the charge of possess cartridge ammunition, you will be convicted and sentenced to pay a fine of $300.
On the charge of drive unlicensed, you will be convicted and sentenced to pay a fine of $300.
On each of the two offences of committing an indictable offence whilst on bail, you will be convicted and discharged.
I will order that 2 months of the sentence imposed on Charge 1, 6 months of the sentence imposed on Charge 4 and 1 month of the sentence imposed on Charge 6, be served cumulatively upon the sentence imposed on Charge 2. I will further order that all other terms of imprisonment imposed on this day are to be served concurrently with the sentence imposed on Charge 2, rendering a total effective sentence of 7 years and 3 months’ imprisonment. I fix a non-parole period of 5 years.
On Charges 3 and 4 I will also order that, pursuant to s 89(4)(c) of the Sentencing Act 1991 (‘the Act’), that you be disqualified from obtaining a further driver’s license for a period of 2 years.
I will declare pursuant to s 18 of the Act that you have already served 288 days of that sentence by way of pre-sentence detention. I will cause that declaration to be noted in the records of the Court.
I will also declare pursuant to s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to a total effective sentence of 9 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months. I will cause that declaration to be noted in the records of the Court.
I will grant the disposal order and forfeiture order sought by the Crown.

[2020] VCC 1502

24 September 2020