Director of Public Prosecutions v Schembri
[2022] VCC 1690
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01830
CR-21-01019
Indictment No. L11085897.1A
L11085897.1B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SCHEMBRI |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial dates: 23 March 2022, 24 March 2022, 25 March 2022, 28 March 2022, 29 March 2022, 30 March 2022, 31 March 2022 Plea dates: 28 June 2022 and 6 September 2022 | |
DATE OF SENTENCE: | 30 September 2022 | |
CASE MAY BE CITED AS: | DPP v Schembri | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1690 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: sentence following trial; intentionally cause injury; recklessly cause injury;
aggravated burglary – intent to assault person present; contravene family violence
intervention order intending to cause harm or fear; theft; Foetal Alcohol Spectrum
Disorder; substance abuse.
Legislation Cited: Sentencing Act 1991 (Vic);
Cases Cited: Smith v The Queen [2020] VSCA 159; DPP v Meyers [2014] VSCA 314;
Worboyes v The Queen [2021] VSCA 169, [39]; Butler v The Queen [2021] VSCA 29;
Jenkins v The Queen [2022] VSCA 1.
Sentence: convicted and sentenced to a Total Effective Sentence of 6 years’ and one months’
imprisonment, with a non-parole period of 3 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z Petric (Trial and Plea) Mr J Connolly (Plea) | Office of Public Prosecutions |
| For the Accused | Mr J McQuillan | Leanne Warren & Associates |
HER HONOUR:
1Benjamin Schembri, on 31 March 2022, after a trial lasting seven days, a jury found you guilty of one charge of recklessly cause injury, one charge of aggravated burglary, one charge of intentionally cause injury and two charges of contravening a family violence intervention order intending to cause harm or fear. On the same day the jury found you not guilty of a charge of intentionally cause injury arising from the same incident as the reckless cause injury charge; not guilty of a charge of damaging a door handle and not guilty of making a threat to kill. Also, on that day and pursuant to my direction, an entry of not guilty was made in relation to a charge of persistent contravention of a family violence intervention order.[1]
[1] The only remaining charge on the trial indictment was an alternative to the charge of Intentionally Cause Injury and no verdict was taken.
2The trial matter was then adjourned to 28 June 2022 for the hearing of a plea in mitigation and for your arraignment and plea on a separate indictment.
3Specifically, on 28 June 2022 you pleaded guilty to: one charge of handle stolen goods, one charge of damaging property, three charges of theft, and one charge of attempted burglary and five related summary offences of driving whilst disqualified.
4It now falls to me to sentence you for your conduct. In arriving at an appropriate sentence, which in your case really means the length of the term of imprisonment, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[2]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Circumstances of the offending
5Turning first to the trial offending which occurred on two separate days, 12 March 2020 and 1 April 2020.
6The facts I find consistent with the jury's verdict are as follows. You and the complainant, Julia Powell,[3] were de facto partners for some time prior to separating in early 2020. Ms Powell had a young daughter from another relationship, Tabitha Calvert,[4] who lived with the two of you.
[3] To ensure there is no identification of a victim, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the victim and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
[4] A Pseudonym
7On 11 February 2020, police obtained an interim intervention order against you and in favour of Julia Powell and Tabatha, who was just over a year old at that time. You were present in court when the order was made and are noted as not having agreed to it. The order was made after hours in the bail and remand court and its contents were explained to you at 9.10 pm. Essentially, the order prevented you from committing family violence against Julia Powell and Tabatha or damaging their property. It did not prevent you from having contact with them altogether.
8As at 12 March 2020 you and Julia Powell were, in her words, 'pretty much separated’ but ‘on and off'. She and Tabatha had just moved into an Airbnb in Keilor Downs which backed on to your ex-wife's house. However it is that you learned of the address, you spent the day of the 12th coming and going from the Airbnb and arguing constantly with Julia Powell.
9Between 7 pm and 8 pm you were outside the Airbnb trying to get back in. You were banging and pulling on the door so hard that you damaged the door handle and eventually Julia Powell let you in. Given the jury's verdict I do not find that you intended to damage the door or the handle. Once in, you demanded money for drugs which Julia Powell refused to give to you. As Tabatha was asleep in the living room, Julia Powell took you into the bedroom where the argument continued and became physical. At different points you grabbed Julia Powell by the throat, the hair, and the arm, constricting her breathing, causing her pain and leaving visible marks and bruising on her neck and arm.
10In respect of this conduct, the jury found you guilty of recklessly cause injury (Charge 2), contravention of a family violence intervention order, knowing your conduct would probably cause harm or fear (Charge 9) and not guilty of intentionally cause injury (Charge 1). I therefore proceed on the basis that you did not intend to injure Julia Powell but rather knew that you would probably injure her.
11Continuing with the events of the night, Julia Powell managed to get you out the door and lock the door behind you, however you returned soon after and started banging on the window, claiming that Julia Powell had your identification. Julia Powell again refused to let you in and at 8.15 pm called Triple 0 asking for police attendance.
12The police arrived at around 8.30 pm, took a statement from Julia Powell and photographed her injuries. Despite telling her they would apply for a full non-contact intervention order, it appears they did not.
13Just after midnight you returned to the Airbnb and tried to get back in. I am not satisfied of exactly what you did on that occasion, and in particular I am not satisfied that you broke any windows, however, your actions clearly alerted Julia Powell to your presence and both she and the Airbnb host, who lived upstairs, called police and you left without gaining entry.
14The events I have just outlined led to intervention by child protection officers who removed Tabatha temporarily from Julia Powell and organised another place for Julia Powell and Tabatha to live secret from you. On 31 March 2020, Julia Powell and Tabatha moved into that address, which was a ground floor unit in a block of flats in Bacchus Marsh. However, by the very next morning you had discovered their whereabouts.
15At around 7 or 8 am on that morning, that next morning, being 1 April 2020, Julia Powell heard a hose going in the backyard of the unit. She looked out the kitchen window and was shocked to see you hosing the concrete. She asked how you found them and you responded to the effect that 'they didn’t hide you very well'. She demanded you leave but you refused, and when she didn't open the door you booted it in, breaking it off its hinges. Once in, you immediately grabbed Julia Powell by the throat and dragged her from the kitchen into the adjacent lounge room where Tabatha was on a blanket on the floor. You pushed her over the rear of a couch onto her back, moving the couch in the process and landing on top of her. This was right next to Tabatha on the floor, although I am not satisfied that she saw or was aware of what was going on. You then dragged Julia Powell by the throat into the bedroom telling her that this time you were going to kill her.[5] You continued strangling Julia Powell in the bedroom. She was struggling to breathe and could not fight you off. However, she did manage to say that Department of Families Fairness and Housing would be there any minute. This was not true, but Julia Powell thought it might scare you off and she was right. You immediately let her go and when she told you that Department of Families Fairness and Housing would take Tabatha from her again if they saw you there, you ran out the front door down the driveway bringing to an end that terrible ordeal.
[5] This statement is separate and distinct from the alleged threat to kill later in the same day of which you were acquitted.
16Julia Powell immediately called Triple 0. That call was at 8.44 am and ended abruptly with Julia Powell saying she needed to get off the phone, before she gave any details. Her distress is obvious in the recording of that call. At 8.47 am police emergency called her back and obtained her details and the reason for her call. Police arrived shortly afterwards.
17A conversation with Julia Powell out the front of her unit whilst she was holding Tabatha was captured on body worn camera and again her distress and fear is obvious. Police took photographs of the unit, including the damage to the door frame caused by you kicking in the door, the couch in the living room, which had obviously been moved when you pushed Julia Powell over it, and the visible injuries you had caused to Julia Powell’s neck. These injuries comprised red marks, bruises and scratches, mainly to the right side of her neck. The police also took swabs from mucous on the bricks just outside the back door which was later analysed and found to contain a DNA profile matching yours and which you admitted during the trial to be your DNA.
18The events of 1 April 2020 comprise Charge 4, aggravated burglary, Charge 5, intentionally cause injury and charge 10, contravention of a family violence intervention order, knowing your conduct would probably cause harm or fear. I proceed on the basis that you entered Julia Powell's unit as a trespasser with intent to assault her, and that you intended to cause injury to Julia Powell.
19You were eventually arrested in relation to these incidents on 5 May 2020 following Julia Powell notifying police that you had attended at her next address, which was also supposed to be a secret from you. You ran from police and were eventually caught in a stranger's house. You were subdued and arrested. You declined to be interviewed.
20Turning to the offending to which you have pleaded guilty, which all occurred between 1 April 2020 and 5 May 2020. During that period you drove a car with stolen number plates (Charge 1) and whilst disqualified from driving. There are five summary charges of driving whilst disqualified between 1 April 2020 and 11 April 2020. You also stole petrol from three different petrol stations (which are Charges 3, 4 and 6) and you damaged a coin machine at a carwash with a crowbar (which is Charge 2). Finally, you attempted to gain entry to a storage unit by first using the same crowbar to strike the keypad and gate and then reversing into the gate (which is Charge 5).
Your personal circumstances
21Turning to your personal circumstances.
22
These were outlined in defence submissions and in three reports, two from
Clinical Neuropsychologist, Dr Lauren Anderson and one from
Forensic Psychologist, Dr Kiara Bird. I will return to the authors' psychological assessments shortly.
23You were born in Victoria in April 1987 and are now 35 years old. You have one older sister. Your childhood was characterised by instability. Your parents were significant heroin users and separated when you were five years old. You and your sister stayed with your mother and had no contact with your father. You lived in commission housing and there were often strangers in your house. You were exposed to your mother's drug use and other criminal activity. Your family often used food vouchers and welfare to support themselves.
24Your mother died after being struck by a car when you were 10 years old. At first you and your sister were cared for by your grandparents but after about a year your grandmother and your sister moved to the United Kingdom. You stayed with your grandfather but were soon sent to live at an early intervention residential youth programme because of your challenging behaviour. You were using cannabis and were diagnosed with attention deficit hyperactivity disorder (ADHD) for which you were prescribed dextroamphetamines. After two years, at age 13, you returned to reside with your grandfather and uncle.
25You struggled with numeracy and literacy at school and left in Year 8. You then worked for several years at a tyre and auto workshop, which you enjoyed.
26You used cannabis daily from age 13 to age 17, at which time you met your now ex-wife. You married soon after and had a daughter together. In the early years of your marriage you were mostly abstinent from drugs, but you started using ‘ice’ to cope with stress when you were 24. This exacerbated existing problems within your marriage and you separated when you were 26. You report that there was no violence within your marriage and that you are on good terms with your ex-wife and your now 10 year old daughter. You speak to both of them regularly over the phone from prison.
27After your marriage breakdown your life spiralled downwards. You had no job, used 'ice' daily, experienced homelessness and began to offend. You have been largely unemployed since your early twenties.
28You have only had one significant relationship after your marriage and that was with Julia Powell.
29In 2015, when you were in your late 20s, you reconnected with your father. You visited him on three occasions and introduced him to your daughter. Your interactions were positive, but short-lived, as he soon died of a drug overdose.
30Your first appearance in the Magistrates' Court was in 2016 at age 29 for firearms and weapons charges. In December 2017 you received your first sentence of imprisonment as part of a combination sentence. This was for a large consolidation of charges comprising dishonesty (including burglary), drugs, driving, criminal damage and more firearms and weapons offences. Whilst serving this sentence, you were introduced to Buprenorphine, an opiate substitution therapy, which led to you using heroin, in addition to 'ice' upon your release.
31Two years later you received another sentence of imprisonment, again as part of a combination sentence, for a consolidation of charges similar in nature to the 2017 offences, but also including resisting a police officer and breaching the corrections order you received in 2017. Due to time served you were released immediately but reoffended within a matter of months by committing the offences before me, as well as a raft of other offences, until you were remanded in custody on 5 May 2020.
32You were sentenced for those other offences on 14 January 2021 to two and a half years' imprisonment with a non-parole period of 18 months and 254 days declared as pre-sentence detention. The offences were all committed between 23 March and 5 May 2020 and comprised dishonesty (including burglary), damaging property, assaulting and resisting emergency workers and reckless conduct endangering life, as well as breach of your 2019 Corrections Order.
33On 22 June 2022 that sentence came to an end and ever since you have been on remand for these offences. All up you have been at Fulham prison for almost 29 months. You work as a garbage collector onsite.
Psychological Assessments
34I will now turn to the psychological assessments.
35Dr Anderson assessed you over video link on two occasions in October 2020 for the purpose of reporting on how your cognitive profile related to the matters for which you were sentenced on 14 January 2021, not the matters before me. The first occasion was a psychological assessment and the second a neuropsychological assessment to explore her suspicion that you might have Foetal Alcohol Spectrum Disorder, otherwise known as FASD. Whilst her reports were prepared for your January 2021 court appearance, at my request, Dr Anderson gave evidence on your plea in the matters before me.
36The report of Dr Bird was the result of a Forensicare assessment that I ordered. She interviewed you, also via video link, on 22 July 2022.
37Dr Anderson assessed your general level of intelligence as being the same as someone with a mild intellectual disability. She could not diagnose you as actually having an intellectual disability, because such a diagnosis requires consideration of adaptive functioning, which she did not do. She did however affirmatively diagnose you as suffering from FASD which essentially explained your cognitive impairments. After hearing her evidence and manner of diagnosis I accept this opinion, which I note was not challenged by the Crown.
38Dr Anderson considered that your ADHD symptoms as a child were more appropriately attributed to FASD. She said your cognitive deficits, emotional and behavioural difficulties, anxiety, impulsivity, and poor problem solving skills are all attributable to your FASD, which is a neurodevelopmental condition. She believed there was a clear causal link between your FASD and all your offending, not just that for which she wrote the reports, but the present offending, at least in so far as she was appraised of the circumstances during her evidence. She was not able to quantify the respective contributions of your ice consumption and FASD to the present offending, nor say whether you would have offended absent your consumption of ice, however she considered your ice use to have lowered your already very deficient problem solving and consequential thinking skills.
39Dr Bird was not able to independently verify your FASD but accepted Dr Anderson's diagnosis. Quite apart from the neurodevelopmental difficulties associated with FASD, she considered your early exposure to neglect and instability meant you were unlikely to have had the opportunity to ‘develop healthy nurturing attachments to others, nor learn how to appropriately regulate difficult emotions’. She believed your 'absence of healthy internal coping strategies' explained your 'reliance on substances to avoid or suppress difficult emotions'.
40Dr Anderson expressed similar views in her report at paragraph 7.3.2 and 8.3.6.
41In relation to the causes of your offending Dr Bird said, and I will read out this paragraph in full.
'When examining Mr Schembri's offending it is important to consider how developmental deficits and early adverse experiences may have predisposed him towards violence and impulsive offending when under higher levels of perceived stress and during a time when his judgement was likely to have been further impaired by heavy substance misuse. Mr Schembri appears to have significant underlying deficits with problem solving, consequential thinking and understanding, processing and coping with the strong emotions of others and himself. His presentation means he is less able to negotiate conflict verbally and may indeed struggle to consider verbal problem solving as a first option. When coupled with the evident severe difficulties with impulsivity, Mr Schembri has enacted violence in the moment likely as a means by which to force control or compliance, i.e. problem solve. Likewise in the acquisitive offending, Mr Schembri has not planned or considered his actions, instead he has acted on impulse to meet immediate demands, failing to account for the longer term consequences of his actions.'
42In terms of your mental health, you told Dr Anderson you had previously been diagnosed with schizophrenia and prescribed antipsychotic medication. Dr Anderson did not detect any psychotic symptoms during her two assessments and considered any previous psychosis was due to drug ingestion not schizophrenia.
43
You also reported to Dr Anderson a longstanding history of depression and anxiety, including panic attacks. She assessed you on the first occasion in
October 2020 as having mild symptoms of depression and anxiety and moderate stress. Several weeks later, at her second assessment, you were feeling better and reported that your mental health had stabilised. Indeed Dr Anderson described you as appearing to thrive in the custodial environment because of the level of structure, routine and predictability it afforded.
44However, when Dr Bird saw you in July this year you presented as hopeless and flat. She noted the deterioration since Dr Anderson last saw you and believed you met the criteria for moderate to severe major depressive disorder. Further, she opined that a lengthy prison sentence was likely to exacerbate your depressive symptoms, an opinion with which Dr Anderson agreed in evidence.
45Dr Bird also diagnosed you with stimulant use disorder which was in remission in the controlled prison environment. You have completed a 40 hour 'Ice and Me' substance misuse programme in prison and have monthly Buprenorphine depot injections. You told Dr Bird that you had not used illicit drugs in prison.
46
Physically you appear to be in reasonable health. You have previously contracted
Hepatitis Cbut have fully recovered and are symptom free.
Objective Gravity of your offending and moral culpability
47Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. If there was any doubt about the inherent seriousness of your offending against Julia Powell the maximum penalty of 25 years for aggravated burglary makes it clear.
48The maximum penalty for your other offences are as follows. For recklessly cause injury and intentionally cause injury, five years, for contravention of an order intending to cause or fear for safety, five years, for handling stolen goods, 15 years, for damaging property, 10 years, for theft 10 years, for attempted burglary, five years. And for driving whilst disqualified, it is two years.
49As was recently said by our Court of Appeal in a case of Smith:
'Male violence against women is a scourge of our society. The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence – in whatever context – should be no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.[6]
You assaulted Julia Powell in her then home on 12 March 2020 notwithstanding the fact you had an intervention order against you. After she was moved from that home due to your assault you tracked her down and when she did not allow you into her new home, you kicked the door in and immediately assaulted her in front of her daughter. Whilst you might not have gone to that address with the intention of assaulting her, you knew that she was scared of you, that your attendance would not be welcome, and that you should not have been there. The moment you did not get your way you reacted with violence. You broke into her home with the clear intention to assault her. Your conduct is made worse by the fact that on both occasions Julia Powell's daughter Tabatha was present in the home and exposed to your violent temper, even if, fortunately, she did not actually witness it.
[6]Smith v The Queen [2020] VSCA 159, [7]
50Whilst the injuries you actually caused Julia Powell might not be that serious, the seriousness of the injuries is not necessarily the only, or even the most important, factor in assessing the seriousness of the causing injury charges. Strangling someone is inherently dangerous and extremely frightening. On both occasions your grip around Julia Powell's neck was so hard it caused actual bruising and marks. I have no doubt that she was in pain, that she struggled to breathe and that she was very scared. I have no doubt that you intended to scare her on both occasions and the jury found that you knew you would probably injure her on the first occasion and intended to injure her on the second. I am not satisfied she lost consciousness on either occasion, however that may have been more a matter of good luck, than anything else.
51All up I consider the offences for which you were found guilty by a jury to be objectively serious, and in the case of the aggravated burglary and associated offences, very serious, examples of their type.
52The other offences to which you pleaded guilty are obviously less serious. You told Dr Bird that you were living on the streets and needed to drive, but still serious enough given your history of committing many similar offences and your flagrant disregard of the law. Just by way of example, counting the 5 charges before me you have driven whilst disqualified on 16 occasions and driven once whilst suspended.
53
All your offences are aggravated by the fact you were on a
Community Corrections Orderat the time.
54Turning to your moral culpability. Any assessment of the impact of your FASD and disadvantaged upbringing on your moral culpability is complicated by your drug use. Mr Connolly for the prosecution submitted that your drug use was a novus interveniens which operated to prevent those factors from reducing your moral culpability.
55It is settled law that self-induced drug intoxication can rarely be a mitigating factor, indeed it is sometimes an aggravating factor. Your prior criminal history is consistent with your history of drug use and indicates that in 2020 you would have been well aware that when you take drugs you are much more likely to offend. On the other hand I accept the expert evidence that your history of disadvantage and FASD predisposed you to using drugs as a coping mechanism. In evidence
Dr Anderson said your FASD and drug use were inextricably linked.56It is difficult to disentangle the forces at play in your offending. Notwithstanding you voluntarily consumed drugs with knowledge of the likely consequences, in the end I consider that it would be unfair to regard you as equally blameworthy as a person with a normal cognitive profile and without your history of disadvantage. I therefore accept that your moral culpability is reduced to some extent.
Current Sentencing Practices
57One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[7]
[7] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
58I was not referred to any comparable cases by either counsel, however, the most recent Sentencing Advisory Council Sentencing Snapshot (December 2021) for your most serious offence of aggravated burglary indicates that over 90 percent of people sentenced for the offence over the five years between 1 July 2016 and
30 June 2021 received an immediate term of imprisonment ranging from a few days to eight years, with three to four years being the most common sentence of 27 per cent. (That is 106 out of 387 non aggregate terms).59Further, I have had regard to the principles set out in the 2014 case of Meyers[8] which was, incidentally, a case involving an intimate relationship, aggravated burglary.
[8]DPP v Meyers [2014] VSCA 314.
60Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of your case.
Impact of your offending
61I am also required to take into account the impact of your offending on your victims and their personal circumstances.[9] Julia Powell made a victim impact statement in relation to your offending. As well as detailing the physical injuries I have already described, and some financial consequences, she also detailed the emotional toll.
[9]Sentencing Act (n 1) s 5(2)(daa), (da) and (db).
62She describes fearing for her life and that of her daughter. She says she was unable to sleep and she had to move again because she was scared. She became paranoid and she needed to seek help. She was prescribed medication. She found it difficult to be around people. And she felt angry, frustrated, hurt, sad and very alone.
Your character and prospects of rehabilitation
63I turn to your character and prospects of rehabilitation.
64Although you do not have an extensive criminal history, each of your court appearances, except your very first, was for large consolidations of charges. You have failed to avail yourself of rehabilitative opportunities in the form of corrections orders and have not been deterred by sentences of imprisonment.
65Whilst you have had therapeutic interventions before you have not previously been diagnosed with FASD. According to Dr Anderson, your FASD is an enduring disorder which cannot be cured or treated except by behavioural support and educational aides.
66You have absolutely no remorse for the offending against Julia Powell. You have consistently denied it and told Dr Bird that you were set up and played. This victim blaming is a concern in terms of your level of insight and future prospects.
67Overall, Dr Bird considered you to be a high risk of general reoffending, a high risk of engaging in future violence and a high risk of causing serious harm with your most likely victim to be an intimate partner. She noted these risks would be reduced if you are able to access appropriate support upon your release. Dr Anderson, who I understood in evidence to defer to Dr Bird's expertise in assessing risk, expressed your prospects of rehabilitation as good if you are supported to access appropriate disability support services and supported to address your illicit drug use and situational factors that increase your criminogenic risk.
68I have emphasised the word 'if' when referring to the evidence of Dr Bird and Dr Anderson. And that is because the 'if' expressed by both of them is a big 'if’. Dr Anderson said you were likely to require significant levels of support and structure to be able to address your criminogenic risk factors and as she said, this includes your drug use. The extent to which you will be able to receive that support in the community and abstain from drugs is by no means certain.
69You currently have an approved NDIS package and you indicated during the plea hearing that that package has been extended for three years and that you have been told that it will continue for the rest of your life. To best ensure you get all the supports you need both in and outside of the prison environment, I will order that all three psychological reports be provided to Corrections.
70Overall I can only regard your prospects of rehabilitation as guarded.
Other mitigating factors:
71There are two other mitigating factors to mention, the first is your plea of guilty, which is obviously not relevant to the offences involving Julia Powell.
72You are entitled to a significant discount in your sentence on the charges to which you have pleaded guilty. In so doing you have facilitated the course of justice, taken legal responsibility for your crimes and spared witnesses from giving evidence. Further, our Court of Appeal has recently and repeatedly emphasised the need for sentences to reflect the high values of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[10]
[10] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
73The second mitigating factor is the burden of imprisonment on you. I accept Dr Bird's opinion as to the likely detrimental effect of prison on your depressive state. I also take into account the fact you are being sentenced during the COVID-19 pandemic and that a term of imprisonment during the pandemic is generally harder than at other times. And I also take into account the time you have already spent in prison serving that January 2021 sentence and whilst on remand for these offences, has been harder than it would have been if not for the pandemic.
Purposes of Sentencing
74I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.[11] A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
[11]Sentencing Act (n 1) s 5(1), (3).
75Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. In your case that includes the offences for which you were sentenced in January 2021 given they occurred in the same timeframe as all the matters before me and, significantly are the same or similar in nature to the summary charges and the charges on the plea indictment.
76Moreover you served the whole of that sentence. I will recognise this overlap by moderating individual sentences; ordering substantial or total concurrency between sentences; and by setting a lower non-parole period than I otherwise would.[12] In other words, I intend to sentence you as if I had been dealing with all offences, including those for which you were sentenced in January 2021, at the same time.
[12]Butler v The Queen [2021] VSCA 29 and Jenkins v The Queen [2022] VSCA 1.
77
I am also conscious of the need to avoid doubly punishing you for the same conduct when dealing with the trial charges of aggravated burglary, causing injury and breaching family violence intervention orders. For example, the case of Meyers, to which I have already referred, makes clear, that whilst the assault on
1 April informs your intent on the aggravated burglary charge, it cannot otherwise affect the sentence on that charge.
78Denunciation and general deterrence are paramount sentencing principles in crimes of violence against intimate partners. Further, specific deterrence and community protection are clearly relevant in your case. Your FASD and disadvantaged upbringing requires that the principles of general and specific deterrence be moderated to some extent but they still remain relevant.
79I must also consider your rehabilitation as it is by your rehabilitation that the community will be best protected against you. I will allow for that by the setting of a non-parole period, which as I have already indicated will be lower than I would usually impose for the head sentence. So I am about to sentence you now, and as I said you can remain seated.
Sentence
80On the plea indictment I will impose one aggregate sentence as the offences are founded on the same facts and/or are part of a series of offences of the same or a similar character. For the same reason I will impose an aggregate sentence on the summary offences of driving whilst disqualified.
81For the charges of handle stolen good, damaging property, three charges of theft, and attempted burglary, I convict and sentence you to an aggregate sentence of six months' imprisonment.
82On the charges of drive whilst disqualified, and there are five of them, I convict and sentence you to an aggregate sentence of five months' imprisonment.
83On the trial indictment, on Charge 2, recklessly cause injury, on 12 March 2020, I convict and sentence you to 10 months' imprisonment.
84On Charge 4, the aggravated burglary on 1 April 2020, I convict and sentence you to four and a half years' imprisonment.
85On Charge 5, intentionally cause injury on 1 April 2020, I convict and sentence you to two years' imprisonment.
86On Charge 9, contravention of order, intending to cause harm or fear for safety on 12 March 2020, I convict and sentence you to 10 months' imprisonment.
87On Charge 10, contravention of order, intending to cause harm or fear for safety on 1 April 2020, I convict and sentence you to two years' imprisonment.
88Now, in respect of those sentences the sentence imposed on Charge 4, the aggravated burglary is the base sentence. I order that one month of the six months' aggregate sentence imposed on the plea indictment, six months of the sentence imposed on Charge 2 on the trial indictment, eight months of the sentence imposed on Charge 5 on the trial indictment, two months of the sentence imposed on Charge 9 on the trial indictment, two months of the sentence imposed on Charge 10 on the trial indictment be served cumulatively on each other and on Charge 4 on the trial indictment.
89In respect of the driving whilst disqualified charges, I will not order any cumulation, they are to be totally concurrent. So, those orders for cumulation result in a total effective sentence of six years and one month. In respect of that sentence I set a non-parole period of three years and two months.
90Now what is the pre-sentence detention:
91MR WILSON: It's 99 days, Your Honour.
92HER HONOUR: Ninety-nine?
93MR WILSON: Ninety-nine days.
94HER HONOUR: Not including today?
95MR WILSON: Not including today.
96HER HONOUR: In respect of that sentence I have just imposed I declare that you have already severed 99 days not including today and that is to be entered into the records of the court and deducted from the sentence I have imposed.
97As far as the s6AAA declaration is concerned, that only applies to the plea indictment and the summary charges. If you had not pleaded guilty to those charges, so that's the please indictment and the drive whilst disqualified, I would have imposed a total aggregate sentence of 12 months.
98I am not going to make any order against your licence and that is because any period of cancellation and disqualification that I would impose will have lapsed by the time of your release in any event, so it would be futile.
99So what it means is the total effective sentence I have imposed is six years and one month, with a non-parole period of three years and two months. And I have declared you have served 99 days of that sentence. So, the earliest time that you will be able to be released Mr Schembri is at the end of your non-parole period of three years and two months, taking into account you have served 99 days already. But that is not up to me, that is up to the Adult Parole Board. Do you understand the sentence?
100OFFENDER: Yep.
101HER HONOUR: Right, now have the parties checked that sentence or happy with the arithmetic? Do you want me - - -
102MR WILSON: Yes, Your Honour. Could Your Honour please clarify the sentence just imposed on the Summary Charge 4 of unlawful assault. I think Your Honour ordered some cumulation, but I'm not sure if it's - - -
103HER HONOUR: Where's the Summary Charge 4?
104MR WILSON: That was on the, one second Your Honour.
105HER HONOUR: There is no Summary Charge 4. No, Charge 4, I've got a note is being withdrawn and it was struck out.
106MR WILSON: That's right, sorry, forgive me Your Honour - - -
107HER HONOUR: That's fine, but otherwise you're happy with, yes.
108MR WILSON: Yes, Your Honour.
109MR LINDSAY: As Your Honour please.
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