Director of Public Prosecutions v Schmidt (a pseudonym)
[2020] VCC 479
•22 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARCHIE SCHMIDT (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 April 2020 |
| DATE OF SENTENCE: | 22 April 2020 |
| CASE MAY BE CITED AS: | DPP v SCHMIDT (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 479 |
REASONS FOR SENTENCE
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Subject: aggravated burglary, common assault (x 3); criminal damage; persistent contravention of family violence intervention order. Three summary offences: drive whilst suspended (x 2) and careless driving. Relevant prior criminal history. Many prior breaches of intervention orders as well as breach of CCO’s. All relating to same victim. 36 years old at time of offences. 37 years old as at date of sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague | Office of Public Prosecutions |
| For the Accused | Mr B. Tait (For Plea) Ms Krieger (For Sentence) | Tait Lawyers |
HIS HONOUR:
1 Archie Schmidt[1], you pleaded guilty yesterday to 6 charges laid on the indictment filed before the Court being one charge of aggravated burglary, one charge of criminal damage, one charge of persistent contravention of a family violence intervention order and three charges of common assault. In addition, you have pleaded guilty to 3 summary offences being two charges of drive whilst suspended and one charge of careless driving. The maximum penalties are correctly set out in the prosecution summary.
[1] A pseudonym allocated to protect the identity of the victim of family violence and her children
2 You were born on 27 September 1982 and are now 37 years of age. You have a highly relevant criminal history. That is readily conceded by Mr Tait who appeared on your behalf yesterday.
3 This matter was opened to me yesterday by Mr Sprague who appeared to prosecute on behalf of the Director of Public Prosecutions. He opened the case by placing before the Court a written plea opening that was dated
30 March 2020. Normally that would then be read into the transcript. The prosecutor though, Mr Sprague, said that in the current setting with the use of the WebEx technology, he saw no need to orally open the matter. I asked your counsel for his view and Mr Tait agreed with the prosecutor. Mr Tait told me that it was an agreed statement. As I was sitting in an open Court, I provided a very brief oral summary of what that opening contained before receiving submissions. As I am dealing with an agreed summary and a lengthy one at that, it really serves no purpose going deeply into the facts in these my reasons. There is just no need for me to do so. I will sentence in accordance with the agreed summary, one which plainly discloses that this was serious offending.
4 You were 36 years old at the time of this offending back in June of last year.
5 You had met your wife to be in the year 2000 and had remained together until separation in 2015. Post separation the relationship is described as on/off for some time. You had not lived at the family home for 15 months in the lead up to this offending in June of last year. There were three children of the relationship aged, as I understand it, 12, 7 and 4 at the time of these events. The separation arose as a result of significant ongoing family violence. There had been a number of family violence orders in place with numerous breaches by you since 2015. The criminal history filed before me discloses the occasions where you have been dealt with for offending against her or in breach of an order relating to her. I will go into the chronology in more detail later in my reasons. It is sufficient for present purposes to say that you were placed onto a community corrections order on 4 March of last year for criminal damage, persistent contravention of an intervention order and various bail offences. On 21 June 2019 you were dealt with by way of a fine for contravention of an intervention order and criminal damage. Indeed your criminal history has many dispositions imposed for similar conduct and by that I mean breaches by you of orders and/or commission of related offences by you. A final order was made against you on 17 April 2019. It was a full order and that order is set out as part of Exhibit C. That is the setting for your serious offending on 27 and 28 June of last year. There was yet again a court order protecting your direct victim and you were also on a community corrections order. Neither of those Court orders in any way impeded you from offending in the way that you did.
6 The summary describes the very unpleasant scene which unfolded at the childcare centre at 5.30 PM on the 27 June of last year. Your wife had travelled to the centre with her new partner, Mr Carlson[2], to pick up your 4-year-old daughter. Your ex-wife left the car and went inside to collect her daughter, leaving her new partner and 7-year-old son waiting outside in the car. It is accepted that you attended in contravention of the intervention order. That is one of the agreed particulars in relation to Charge 2. It is actually academic for even if you were permissibly going to the vicinity of the childcare centre, your conduct there speaks for itself. It had nothing to do with collecting your children or any suggestion of you having that in mind. There was no discussion about that and nor for that matter did you leave with any of your children. I do not accept for one moment your account by way of instructions to Mr Tait that you had somehow mistakenly believed it was your day to collect the children. As I say, your conduct at the scene really speaks for itself.
[2] A pseudonym
7 You approached your wife’s vehicle and opened the door. You did not take kindly to seeing her new partner in the car and abused him in the presence of your 7-year-old son. Your ex-wife came out of the centre, saw you, took her daughter back in and then came out alone. You then chased your ex-wife and got to the car, verbally abused her and then grabbed her by the neck pressing her head hard against the window. You squeezed her neck and caused her pain in doing so. A later medical examination disclosed a pattern of bruises to the neck. Those injuries were photographed, and the photographs are part of the depositional material. No one saw the need for me to mark them as an exhibit. As you assaulted her, you threatened to kill her and told her she was, as you put it 'Fucking dead'. The persistent contravention charge embraces the threats made at the scene. All of this activity occurred, as I have said already, in the vicinity of your 7-year-old son. Your ex-wife said she would call the police. You told her not to and then you threatened to kill her if she did. You then reversed your car and collided with another vehicle. Hence the drive whilst suspended and careless driving summary offences. Soon after, you started calling and messaging the victim. Paragraph 19 of the agreed summary sets out the details, namely 13 attempted calls and 9 texts, and that is also embraced as part of the persistent contravention charge. So, much then for the conduct on 27 June. If I may say so, the conduct on that date was all quite bad enough.
8 It got a good deal worse the next day when you contacted your son telling him you were coming to the house. It was early in the morning at around 8 am. Your ex-wife was getting some of the children ready to go to school. Her partner was asleep in bed. You had no business going there at all given the intervention order in place. In fact, you had no business driving anywhere at all given the licence suspension in place. You have given instructions to your counsel that you received some form of account from your son with him complaining about or at least relating to you the fact of your ex-wife's boyfriend still remaining in bed. Who knows exactly what was said in that call. Maybe he mentioned the presence of another man. Maybe you asked about who else was present. That would not surprise me at all. Who knows? I certainly do not accept your account though. I placed your counsel on notice that I provisionally did not accept those instructions that were placed before. Mr Tait chose not to call you to give any evidence of your instructions as to the reasons for attending at the childcare centre the day before or the house on this morning. It was being suggested that you attended at the house owing to that complaint or information from your son. The fact is that you were the person ringing your son and told him you were coming to the house. You had no business ringing him. It was a school day. You had no business attending there. No doubt anger, suspicion, jealousy and possessiveness were at the heart of this attendance, not any concern for your children. Again, your actions speak for themselves. You arrived and kicked your way into the house intending to assault as you entered. You admit that intention by your guilty plea to aggravated burglary.
9 Your ex-wife had tried to bar your entry at the door but to no avail. You damaged the lock and the wall behind the door. That is not the subject of the criminal damage charge I should hasten to add but that was the force of your entry and then once inside, you made it plain why you were there. You forced your way past your ex-wife saying “Where the fuck is this cunt? I’m going to fucking kill him”. You then entered the master bedroom and assaulted her partner as he was getting out of bed, punching him several times to the face and body. Your ex-wife took the three children to the lounge - these are your children as well. She did that to keep them safe. She returned to the other room alone and told you to get out. You abused her and then physically struck her with an open hand three times saying that you would come back and shoot her. You then finished up this awful exercise by punching a hole in the wall hence the criminal damage charge. You then left but you then sent multiple texts to your son Jett asking him to convey your unpleasant messages to his mother.
10 Paragraph 35 sets out the particulars of the persistent breach conduct. It spans the two days.
11 Police were called and injuries and property damage were photographed. As I said, your ex-wife's injuries are described in paragraph 37. Happily, neither she nor her then partner suffered any serious injuries. You were arrested and interviewed on 2 July and whilst you did make some admissions, you downplayed your conduct quite significantly. You really misrepresented each event. That is not a matter in any way in aggravation.
12 You have been in custody since your arrest on 2 July of last year. You pleaded guilty at an early stage. No witnesses were cross examined. Aggravated burglary arises by virtue of your entering this house as a trespasser and doing so with intent to assault and with the requisite knowledge as to the presence of persons within the house. It was plainly a form of confrontational aggravated burglary and as far as I am concerned, a nasty enough one at that.
Victim impact statement.
13 There is a victim impact statement from your ex-wife, marked as Exhibit B. It was read aloud by her yesterday. There is nothing surprising about any of the impacts that she has felt. This was serious offending. You have taken away any feeling of safety or security and exposed the children to something really that no child should be exposed to. She became less trusting of people.
14 These were frightening and confronting events coming on top of a tumultuous chronology of offending by you. She describes the impact of these particular crimes as being immense. The thing which strikes me reading the statement is that she is not expressing any deep hatred of you. Yes, she is dismayed, saddened and disappointed by the way you have behaved and aghast at the impact of your behaviour. Your children were impacted by this conduct after all. They were in the house. You were almost unrecognisable to her in the way that you have behaved over the last handful of years. The unusual aspect of the impact statement is that she says that she wants you to live your best life into the future not the version of a life you have been living. There is still some hope for you to have some role in your children’s lives and she recognises that. She does not snuff that out as she so easily could seek to do and you really should take that on board. You have damaged many relationships, of that there can be no question, but that damage is perhaps, just perhaps, not beyond repair. The job is ahead for you to rebuild trust and of course you have a very long way to go. I take into account the impact of these crimes.
In Mitigation
15 Mr Tait conducted the plea on your behalf. He relied upon a written outline dated 9 April 2020 which was marked as Exhibit 1. Your counsel took me very briefly to your family background, relationship history and work history. He made submissions as to the relative seriousness of the offences and the weight to be given to the various purposes of sentencing. He spoke of your drug use and your struggles with mental health. He conceded that you had a poor history before the courts with many relevant past convictions but emphasized that this was your first time in custody and that you had been doing much to improve yourself. He submitted that you had reasonable prospects of rehabilitation. He placed before me a variety of course completion documents, some negative drug screens as well as a letter from your employer. That was all marked as Exhibit 2.
16 In mitigation, Mr Tait relied chiefly upon:
· Your early guilty plea;
· The presence of some remorse;
· He also raised when I flagged the topic, an increase in your prison burden owing to the COVID-19 pandemic.
17 Mr Tait in his written outline had argued that your presentence detention was sufficient penalty in this case. He abandoned that submission in the course of argument, instead arguing that a combination type disposition would be open with either your immediate release, or release in the not too distant future, onto a community corrections order. Failing that a head sentence with a non-parole period.
Prosecution
18 The Director of Public Prosecutions was calling for a term of imprisonment with a non-parole period to be fixed. Mr Sprague relied upon some lengthy written submissions which I marked as Exhibit D. They were lengthy in accordance with the Practice Direction requiring full written submission to be placed before the court in these troubled COVID-19 pandemic times and that is to take into account the adaptations we have made to oral hearings. I am not going to work my way through the lengthy submissions. They were entirely uncontroversial and set out many matters of established principle. Mr Tait told me as much.
19 To avoid any doubt on this topic though, I should make it clear that I will not treat your drug use as an aggravating feature. See paragraph 14 a-d.
20 The Prosecution placed before me some details of your past offending and the chronology of that past offending. It is disturbing to say the least. They have also placed before me a Corrections breach report as well as a handful of cases dealing with a confrontational aggravated burglary.
21 I hardly needed to be reminded as to the potential seriousness of a confrontational aggravated burglary. After all, I was the sentencing judge in the case of Hogarth as well as in the case of Filiz to which reference had been made. The prosecutor argued that there was a strong need to reflect general and specific deterrence as well as denunciation and punishment in this case. The prosecutor made submissions as to the features of aggravation, the absence of any reduced culpability here and the seriousness of these particular offences.
Background
22 I will turn only quite briefly to your background. The fact is very little detail was placed before me, no doubt in recognition of the fact that your family and developmental background has no role to play in this offending at all. I have no reason not to accept what I have been told about you by your counsel. You were born in September of 1982. You were 36 years of age at the time of the offending. You are now 37. Unlike so many who sit in the dock, you had a good background. You still have strong family support from your mother. You have had a very good employment record working pretty much continuously from the age of 15. I was told by your counsel about your drug use. It does not in any way explain this offending. It would be total guesswork to conclude that it had any role to play in the offending but even if it did, that would be of very little mitigatory value, if any. Whilst I have already said that I will not treat it as a matter of aggravation, I will not treat it as having any sizeable mitigatory value at all. I will treat it as part of the context, that is all.
23 Your counsel concedes that you have a relevant prior criminal history. You sure do. It does not by the way aggravate this offending. I am not going to set out all of the past appearances in these, my reasons, which will be long enough as is. You have a couple of old violence offences from many, many years ago. They were back in 2001. They do not have much relevance to my task. I note that you would have been only 18 or so and the penalties do not hint at any great seriousness. Nor as I understand it do they relate to the same victim. Of far more concern are the multiple appearances for breaches of intervention orders pertaining to the present victim. Since June 2015 there have been numerous appearances all relating to criminal conduct targeting this very same victim. Criminal damage, threats to destroy property, a threat to kill, two assaults, use of a carriage service to harass and multiple breaches of intervention orders, charged either individually or as persistent contravention offences. There have also been a number of Bail Act offences.
24 You were dealt with by way of an adjourned undertaking in June 2015. That had an anger management program condition. Then you received a community corrections order in December 2015. That had judicial monitoring as a condition. You received another community corrections order in January 2016. There was a men’s behaviour change program mandated in that order. Both those community corrections orders had drug assessment and treatment conditions. In October 2017 you were taken back to court for breaching the 2 community corrections orders and those orders were confirmed. On
4 March 2019, as I said, you received yet another community corrections order and in June 2019 you were fined. All of the offending I have described related to your ex-wife. By looking at the prosecution materials dealing with the prior matters which I marked as part of Exhibit C, a disturbing and telling chronology materialises. There were by my calculation the following incidents:
· An incident on 26 January 2015 dealt with on 15 January 2016;
· An incident on 29 January 2015, it says dealt with on 15 June 2016. That Court date seems not to be correct. It may well be a misprint, but it matters not one jot whether it was dealt with on 15 June 2015 or the
15 January 2016;
· Let me continue. An incident on 21 July 2015 dealt with on
7 December 2015; You were bailed on 22 July 2015 and then reoffended on bail within the week.
· Incidents between 27 July and 30 July 2015 dealt with on
7 December 2015;
· An incident on 9 April 2016 dealt with on 26 October 2017;
· A nasty incident indeed on 3 February 2019 dealt with on 21 June 2019;
· A number of incidents on 21 February 2019 dealt with on 4 March 2019 with the community corrections order I have referred to.
25 The offending that I am dealing with occurred in the currency of the final order made on 17 April 2019 and within 6 days of your last being dealt with by a court on 21 June 2019 for the 3rd February incident. You are a very slow learner. The need for specific deterrence and community protection is abundantly clear in this case. You must somehow get it into your head that you must not act in this way with your ex-wife, or for that matter with any partner in the future.
26 Courts have tried repeatedly to lead you away from such crimes with a spectacular lack of success. I will try again but there is only one way now to drive home to you the message and that is, I am afraid, by the very blunt instrument of imprisoning you. The time for tip-toeing around is long gone now. You haven't taken any of the chances offered to you by the courts.
27 I will turn now to consider the matters that have been raised on your behalf by your counsel.
Guilty plea
28 I turn firstly to your plea of guilty. You have pleaded guilty at what I will treat as the earliest stage. There were some negotiations, but the case settled at the committal mention stage and as a result, no witnesses were required to give evidence. That is of importance.
29 Being cross-examined can be a distressing experience. It has been completely avoided here. You have facilitated the course of justice. You have taken responsibility for your offending by pleading guilty. The community has been saved the time, cost and the effort associated with the conduct of a trial in this court or even a committal in the Magistrates' Court. So, I take these various matters into account in mitigation. I also take into account in your favour the fact that you made some admissions to the police.
Remorse
30 I turn now to the issue of remorse. Your counsel argued that I should find that you had some remorse. You had pleaded guilty at an early stage. A guilty plea is often but not always indicative of some remorse. However, here you keep committing the same style of offence against the same victim so the claim of remorse rings just a bit hollow. How many times can you be sorry for a crime targeting a victim, go to Court, get dealt with and then just repeat the same style of conduct? Here you also downplayed the incident in the police interview. That, as I have said, is not a matter of aggravation. Your counsel told me that he could discern remorse in your discussions with him. Well, I am not privy to those discussions and he has chosen not to call you. The community corrections order breach report which is marked as part of Exhibit C suggests that you have had difficulty with insight into the seriousness of your offending and that you have engaged in a process of minimisation of your offending at least in the past. The account that you offered up to your lawyer as the reason for attending at the childcare centre and at the house suggests to me that even now, having spent close to 300 days in prison, you are still in some ways rationalising or seeking to minimise your conduct. I will treat the plea as being indicative of some limited remorse here but that is as far as it can be taken as far as I am concerned. I am not positively satisfied, that is satisfied on the balance of probabilities, that there is actually much remorse in this case.
31 I turn now to your prospects of rehabilitation.
Rehabilitation
32 Given the chronology of offending and the long history of breaching intervention orders and Court orders designed to rehabilitate you, it is none too easy to make any favourable conclusions as to your future prospects. Your mother is still supportive of you. She probably always has been. The problem is you have breached court order after order. That is so despite her support and despite the fact of other protective factors in place such as, for instance, a good employment record and a job to go to.
33 I do not accept that drug use is the explanation for your offending. You, like so many other men, have had difficulty accepting the fact of the breakdown of a relationship and the fact of separation. Maybe drug use had a role to play in the separation. Drug use may have been the context at the time of the offending but that is all it is. It is certainly not greatly mitigatory. You were after all a mature man freely and willingly taking drugs and a number of past Court orders had sought to address that issue, without success.
34 You are now in prison and have been for some time. Hopefully you have reflected on what has brought you there. It would be strange if you had not. I was told that you had undertaken some psychological counselling when in the community but no material has been placed before me in relation to that counselling. That is probably not that surprising given that despite such counselling, you went ahead and reoffended at some points in the past. I cannot make any conclusions in your favour in terms of your mental health having any role to play in this offending. Indeed, there is here no reduction at all in your moral culpability and your counsel explicitly accepts that is the position.
35 It is at least to your credit that you have done a number of courses and programs whilst in custody and that you appear to be drug free. They are positives. You have a very decent employment record and a job available to you upon your ultimate release but as I say, that has not been a protective factor in the past. You have a new partner who I am told is supportive of you. I am not greatly comforted by the fact of the new relationship I have been told about. I was told that you had been in the relationship for a year. Well you have been in custody for close to 300 days of that year. It follows also that you were still acting in this way in June of last year even having developed a new relationship.
36 It is though your first time in custody and it must be said, it is not a good time to be in custody for the reasons which I will soon discuss. You have been having, I am told, contact with your children by phone when they are staying at your mother’s but you of course look forward to trying to re-establish your relationship with them upon your ultimate release. Well hopefully you can but that will be entirely determined by the way that you behave.
37 I take into account the various documents that have been placed before me. You will be serving a sizeable period beyond your presentence detention. Being in prison both to this point and into the future hopefully will serve to deter you to a degree into the future. I suppose the same might have been said of any of the community corrections orders in the past but they did not deter you. The difference is now that you have seen what awaits you for any subsequent offending of this type. I must say it is hard not to be guarded as to your prospects of rehabilitation. The chronology of offending as disclosed in the materials is far from encouraging. You have also had long term struggles with drugs which you have really not successfully addressed in the past at least.
38 I note the community corrections order breach report describes a high risk of reoffending but that report was written in September 2019 and the risk assessment that is spoken of would have related to the assessment back in March 2019 and since then of course you have spent a sizeable enough period in prison and for the first time. All of the chronology suggests that there is a decent enough risk of reoffending into the future either against this same victim or any future partner who chooses to end a relationship with you. I am though prepared to find that you have some prospects of rehabilitation. I am prepared to accept your counsel’s submissions that those prospects are reasonable, but it is if, and it is, if you can desist from drug use altogether and if you can put this relationship behind you. You have had great difficulties in each respect for a number of years. You must understand that any future partner must be free to end a relationship and to do so without this sort of targeted and violent campaign. That has been a massive problem for you over the last few years. You just do not seem to ‘get it’.
COVID-19 Increased burden
39 Your counsel had pretty much concluded his plea and had not mentioned the COVID-19 global pandemic. As a result, I asked your counsel if he was relying on any increased custodial burden here. He said that he was. The submission was that the global pandemic will make your time in custody more difficult. I do not doubt that. It has already had some direct impacts upon prisoners. Your visiting rights have already been suspended. You will not have the ability of going where you want to go or distancing yourself from other people and that is because of course you will have no real autonomy because you are a prisoner.
40 The Court of Appeal first dealt with the issues of the COVID-19 virus in a decision of Brown [2020] VSCA 60. That was in late March of this year. They correctly counselled Judges against speculation. There have been countless decisions since in the Supreme Court and the Court of Appeal. See for instance the cases of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138. Re Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76. Also, as recently as yesterday in the case of Nicholls [2020] VSC 189 and another case yesterday of Re Diab [2020] VSC 196. Many of these decisions relate to bail applications where it seems to me there are very different considerations in play.
41 The fact is of course it is still too early to know how this is all actually going to play out either in the community or in the prisons. It is a rapidly evolving setting changing almost from day to day. How long will the virus affect us all? Even in the space of a few weeks there have been massive changes in the outlook. Things are looking, I must say, far less gloomy than they were looking a fortnight ago. The curve has been well and truly flattened out in the community and it would seem that the rate of new infections is probably currently the envy of the world. What steps will be taken by Corrections if it hits the prisons? How many prisoners will be affected and infected and how will those not infected be impacted? How long will any restrictive measures be in place? I cannot answer any of these questions. I cannot know how it will all actually impact upon you. Only time will tell. I cannot know precisely how Corrections will manage the issue and what true impact it will have upon serving prisoners or classes of prisoners or upon you. I do not doubt though that the pandemic will be generating some stress amongst prisoners. Will there be lockdowns in the future and if so to what extent? Will there be allowances or sentence adjustments made by the authorities by way of declaring emergency management days. Your counsel suggested that there may well be emergency management days declared but I cannot know for sure and nor can you and I cannot take that into account.
42 It seems likely to me that that there will be some lockdowns and that is because social distancing is the key to avoiding the spread of this virus and how else can that really be instituted in the prison setting. I note that 14-day isolation of new prisoners is already up and running.
43 How will it all play out? I do not know. What I do know though is that the virus itself, or concern about the virus, will limit social interaction, would be likely to limit work opportunities and even access to courses, education and programs. All visits have already been suspended. As I have said, that does not require any speculation on my behalf. That has occurred.
44 So, these things taking place or even worrying about these things taking place in the future will increase your burden. I accept that. There is probably no good time to be in prison. However this is certainly not a good time to be there. There is an increased stress for prisoners. So I do accept that there is an increased custodial burden here for the various reasons I have pronounced. There is, by the way, nothing to suggest that you are in a high-risk group or that you have any particular health vulnerabilities.
General remarks
45 I have to take into account the nature and the gravity of the offences. Your counsel concedes the seriousness of the offences. He draws some comfort from the absence of any serious injuries occasioned in the common assaults. He should not. He contrasted this style of aggravated burglary with one committed by a stranger and was obviously suggesting that that later example would be a worse example. I am just not assisted by that submission. They are different settings with differing aggravating features and it is not correct to say that one is worse than the other. It would always depend on the particular circumstances of the particular offence.
46 There have been many cases, so many cases, dealing with the manner of assessing the seriousness of the offence of aggravated burglary. Some are referred to in the prosecution submissions. See for instance the case of Meyers [2012] 44 VR. The very same principles were discussed in a later case of Bowden [2016] VSCA 283 and I should say in very many cases since, including some of those to which I have also been referred by the prosecutor. I am not going to descend chapter and verse into these various cases or the principles.
47 These were residential premises. That is the starting point. You had no business being there at all. You chose to enter them at 8 am as a trespasser. You had no weapon but of course you well knew that there were people within. You entered these premises with an intention to assault. You had ample opportunity to reflect on the seriousness of what you were doing as you drove towards the house. You had ample opportunity to reconsider this ridiculous and serious violence. The offences did not just occur. You drove to the premises in a car you had no business even being behind the wheel of. There had been the announcement to your son that you were coming. There had also of course been the animosity the day before. You were on any view of it a menacing and jealous person and you had every reason to know that your ex-wife who was within the house would fear you, given the conduct from the day before and what you had threatened.
48 You had no weapon, you were not in company and it was not in the early hours of the morning. Those matters of aggravation do not exist here. If they did, I would take them into account and sentence you for a more serious example of the offence. I must sentence you for the crimes you have committed, not for ones you have not committed, and there are ample matters of seriousness here in relation to the aggravated burglary that you have committed. You knew who was in the house. You kicked your way in despite attempts to bar your entry and as I have said, you knew your own children were within the premises and in this case there is just no reduction in your culpability at all.
49 Aggravated burglary is an offence which is preparatory to the commission of other offences. The intent upon entry is conceptually distinct from what actually takes place after the entry has been effected. See the case of Filiz [2014] VSCA 212 para [16]. Enough aggravated burglaries do not lead on to other offending. Well, regrettably this one did. There were two common assaults of people in their own home and proximate to children in the house. Your own children. The common assaults are themselves serious acts albeit not producing any physical injury of any lasting significance. Mr Carlson was in bed and had heard the commotion. He heard the distressed calls from your ex-wife asking for him to help and he was getting out of bed to do just that when he was assaulted by you with multiple punches to the face and body. Your ex-wife was in her own house and was hit three times with an open hand but in an unmistakably menacing context. That was after she had been attacked the day before, after she had tried to bar your entry and after she had seen you attack Mr Carlson, an attack that she had also tried to impede. The common assault the day before upon your ex-wife was a nasty one indeed occurring in a public place, occurring in the vicinity of the childcare centre and in the presence of your son. It was an assault involving neck compression of sufficient force to leave bruises. It is a real worry when a man does that to a woman, I can tell you. All of this against the backdrop of a Court order made on 17 April 2019 to protect that victim. One that obviously meant nothing to you. All of this occurring after you had entered a community corrections order in March 2019, one condition of which of course was that you not re-offend. All of this occurring but days after you had been convicted and fined at Court for an earlier serious breach of an intervention order. The fact is, you just did as you pleased. You drove when you felt like it. You breached court orders as though they were of no weight at all.
50 Aggravated burglary, as I have said, is a serious offence, as countless decisions from our Court of Appeal have spelt out over the last decade. It is an inherently dangerous crime and one that can escalate out of control. It did here, blossoming into a range of other criminal conduct within the house.
51 Sentencing always involves the balancing of a number of purposes or principles. I have to take into account your prospects of rehabilitation. I believe, as I have said, I can only be quite guarded here.
52 You were no silly teenager caught up in some moment of youthful exuberance or immature misjudgement. Nor were you some first-time offender acting in a starkly out of character fashion. That is not the context here.
53 You were a mature man who had been told time and time again by judicial officers to honour these serious court orders and to just leave your ex-wife alone. Yet again though, you have offended, and this time seriously. This offending involves an escalation. I find that you do have reasonable prospects of rehabilitation, conditional upon obtaining treatment but also you have a quite tangible risk of future offending.
54 I must consider the need for specific deterrence. That is the need to deter you from committing crimes in the future. You have a history before the courts for relevant offences. I am not going to set it all out again. I want to make it clear that you do not fall to be sentenced a second time for any of those past matters. You received sentences and you served them. Nor do those past matters in some way aggravate the objective seriousness of this offending. However I do have to make judgments as to the weight to give to specific deterrence. I have to make judgments as to your risk of future offending and the need to protect the community from you. I have to consider your moral culpability. You have had in the past an inability or unwillingness, for whatever reason, to comply with various court orders designed to give you the opportunity to remain in the community. Orders that were also designed to protect your ex-wife. You have not taken any of the chances afforded to you and there have been many. You seemed to think that you were free to assault and monster your ex-partner and to ignore intervention orders as you had done so often in the past. The need for specific deterrence is very clear in this case. As I have said earlier, I will try again to deter you from offending into the future. It is an important purpose of sentencing in this case. Community protection is also important here. I must protect the community from you.
55 I must also denounce your conduct and punish you justly and proportionately. Again, of course, they are important purposes.
56 Quite aside from deterring you from offending, I have to deter others. That principle of general deterrence is a very important consideration in this sort of case. There is a real need to deter other likeminded people from committing such serious offences as these. Family violence is so commonplace. Victorian courts have over the last decade repeatedly and consistently emphasised the need to strongly condemn family violence. Those considering the abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of the community and will not hesitate to punish the offender sternly.
57 The community abhors such conduct and is completely unwilling to tolerate it. So too are the courts. Family violence undermines the foundations of personal relationships and family trust upon which our society rests. It follows then that denunciation, just punishment and general deterrence are to be given primacy in sentencing in this context. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive violent rage. See the case of Filiz [2014] VSCA 212 at [21]. See also the JCV Sentencing Manual.
58 Women who are subject to family violence must be free to leave a relationship. They must be free to leave a relationship without any violence. The fact is, in an ideal world we would not even need intervention orders. There should not be any need to have court ordered protection. But of course, we do not live in an ideal world. We need such orders as so many men seem unable or unwilling to allow an intimate partner to leave without displaying some violence or force. There is anger. There is jealousy. There is possessiveness. There is resentment There is frustration. None of those emotions can in any way excuse or mitigate conduct such as yours. Indeed when I think about it, they are very common drivers for aggravated burglaries or other criminal conduct targeting an ex-intimate partner.
59 When court orders are taken out to protect family members, they are serious orders. They must be adhered to. Breaching such an order is a serious crime itself and there is a strong need to convey that message to other likeminded offenders. Yet again you have persistently contravened such an order and that particular instance of the offence, given the particulars, is a serious example. It spans two days and a variety of conduct though some acts are specifically excluded from that charge because of course they are covered by other separate charged offences on the indictment.
60 It is not and never has been mitigatory that criminal acts have taken place in the setting of a relationship or the breakdown of a relationship. General deterrence is of fundamental importance. See the case of Pasinis [2014] VSCA 97.
Current sentencing practice
61 I have to take into account the maximum penalties and in the case of the aggravated burglary it is a 25-year maximum term. I must take into account the nature and the gravity, as well as the impact, of the crimes.
62 I am required to pay regard to current sentencing practices. That is just one of the matters that a court must have regard to. It is not a controlling factor. I have looked at the relevant snapshot from the Sentencing Advisory Council s, being Snapshot No. 211 from June 2018 for the crime of aggravated burglary. I have looked at the more up to date Sentencing Advisory Council online data for that same offence as well as for common assault and persistent contraventions. For what it is worth, the statistical material discloses that when prison was imposed, the most common sentence for aggravated burglary fell in the band of between 3 years to less than 4 years. Having said that there are very decent bands of people who fared worse than that and for that matter, who did better than that.
63 I have looked at overviews of sentences in the Judicial College of Victoria new manual dealing with common assault and aggravated burglary. I have looked also at the case of Hogarth [2012] VSCA 302 and cases following on from that decision. That case itself had some pretty useful guidance in relation to the crime of aggravated burglary as well as a very large table of cases. I have also reviewed the various cases to which I was referred by the prosecutor.
64 The decision of Hogarth and many decisions since including the case of Whiteford [2016] VSCA 26 make clear how seriously confrontational and intimate-partner aggravated burglaries are to be viewed. So too the case of Filiz, which I have already mentioned.
65 Now statistics and sentences imposed in other cases, have real limitations. Indeed, the limitations are just inherent.
66 Statistics will never disclose any detail as to the offender or the offence. They do not spell out the extent of a criminal history of the offender. They are silent as to remorse or prospects of rehabilitation. They are silent as to the need for specific deterrence in a given case. Indeed, they are completely silent as to any features of aggravation or mitigation in existence. It is not my job to sentence based on the most common or average sentences on statistical analysis. I am not a statistician. I am a judge exercising a sentencing discretion in this case.
67 Sentences imposed in other cases are not precedents. Every crime is different and so too is every offender. What I must do is sentence you for your crimes. They are undoubtedly serious, as is correctly conceded. I am not going to waste your time or mine trawling through the cases I was referred to by the prosecutor and comparing them to your case and identifying similarities and differences in each direction. For instance, differences in background or offence details. I have read the various cases I was referred to. The cases are not on all fours. Other cases almost never are. There are more usually a host of differences in personal circumstances and offence detail as there was here.
68 There is plainly a strong need to deter you. This was no minor example of aggravated burglary, accepting for the moment that there can be such a thing as a minor example of such an offence. This was a serious confrontational aggravated burglary committed by a man with a disturbingly relevant recent criminal history and by a man who was on a community corrections order at the time for related conduct.
69 Prison is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. That is because a Court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Your counsel’s written submissions as to time served being sufficient could not for one moment be accepted. He abandoned that submission correctly so and no doubt did so owing to the fact that the submission was simply not realistic. Nor for that matter do I accept the submission as to the availability of a combination type order here. Neither of those dispositions would pay anything resembling appropriate or adequate weight to the various purposes of sentencing. There is the need in this case to give real weight to general and specific deterrence, to denunciation, community protection and punishment. I do not ignore your rehabilitation as that too is one of the purposes of sentencing but the nature of the offending and your past history before the Courts suggests to me that other purposes must be given more weight in my task. I do not accept the submission that there is limited utility in further imprisoning you. There in fact is the strong need to do so for the reasons I have pronounced.
70 Your performance on past orders has of course been derisory and those orders have in no way deterred you from offending.
71 I believe I am required to further imprison you to achieve the various purposes of sentencing in this case and the sentences demanded are of such a dimension that a prison term in combination with a community corrections order is not even, as a matter of theory, open to me. Such an order would require you to be free to undertake the community corrections order within 12 months. That is simply impossible to achieve here.
72 I am required to fix a non-parole period when I sentence someone to a period of 2 years or more, other than in a few very rare situations as set out in s.11 of the Sentencing Act, settings which do not apply to you. Plainly a sentence in excess of that period of two years is required here. So I must fix a non-parole period. Quite simply, by your criminal conduct on the two days in June of last year, you have at long last left the court with no other option but to pass a sizeable prison term upon you.
Totality
73 I pay regard to totality of sentence.
74 The most serious crime is of course the aggravated burglary. I have a number of separate crimes here though. There is a tight time frame and I take that into account in providing for a level of concurrency. There is something of an overlap in this sense. You attended for instance at the childcare centre in breach of the order. That is one of the particulars of the persistent breach charge. You then committed the assault. The assault is separately charged but other conduct is rolled into the persistent breach charge. So too the next day you attended in the vicinity of your ex-wife's home. Again, that is a particular of the persistent breach charge. You then entered the home and committed the aggravated burglary and then the separate assault within the home. The entry and the assaults are excluded from the persistent breach charge as they are discretely charged offences on the indictment. I have different crimes with different elements and different conduct but of course I guard against any double punishment in this case.
75 There is a need though for some cumulation as between some of the sentences to mark out the separate crimes committed upon separate victims. I have a nasty common assault on the 27 June targeting your ex-wife in a public place and a quite separate common assault on the same victim the next day in her home. They are separate crimes. So too the separate crime of assaulting her partner. The persistent contravention spans two days and is no minor example of that crime by any stretch of the imagination, given the conduct embraced. The criminal damage is the least serious offence on the indictment. I also have the driving matters which I have scarcely mentioned.
76 I cannot just roll all these sentences in together to run concurrently. That is just not the way it works. I do pay regard to the principle of totality and have reviewed the effect of the sentence I am about to pronounce and that is to ensure that it is not crushing upon you and that the outcome is commensurate with your overall criminality. The criminality here was high.
77 I will have you remain seated and I will now pronounce the individual sentences and then make orders as to the extent of concurrency. I am sure you will lose track of all of this in the running but I will explain what it all means at the end by telling you what the total effective sentence is.
Sentence
78 On Charge 1, a charge of common assault upon your wife outside the childcare facility, I convict and sentence you to 8 months' imprisonment.
79 On Charge 2, persistent contravention of a family violence order, I convict and sentence you to 8 months' imprisonment.
80 On Charge 3, which is the charge of aggravated burglary, I convict and sentence you to 40 months, that is 3 years and 4 months' imprisonment. That will be the base sentence.
81 Charge 4, the common assault upon Mr Carlson, I convict and sentence you to 6 months' imprisonment in relation to that.
82 Charge 5 is the common assault upon your ex-wife within the house, I convict and sentence you to 5 months' imprisonment in relation to that event.
83 Charge 6 is the criminal damage. I convict and sentence you to 1 month's imprisonment.
Summary offences
84 On the two summary offences of drive whilst suspended, I believe I can pass an aggregate sentence. On those two charges I convict and sentence you to 1 month’s imprisonment.
85 On the summary charge of careless driving I convict and fine you $500.
Cumulation
86 I direct then that 2 months of each of the sentences imposed on Charges 1, 2, 4 and 5 (adds 8 months) is to be served cumulatively upon the base sentence and upon each other. That produced eight months' cumulation. The other sentences that I have imposed on the criminal damage and the drive whilst suspended charges will be served concurrently with all these sentences.
TES
87 What this results in then is a total effective sentence of 48 months or 4 years' imprisonment.
Non-Parole Period
88 I fix a period of 30 months or 2 ½ years during which you will not be eligible for release on parole.
Section 18
89 You have already spent the period of 294 days by way of PSD on these matters and that is to be declared as having been served pursuant to this sentence.
Section 6AAA
90 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to 6 years' imprisonment. I would have fixed a non-parole period of 4 ½ years.
Licence order
91 On the driving charges, I have considered whether I should be making any order against your licence. As you have heard, you are going into custody for a sizeable enough period and I see no utility in making an order now which would have no effect upon you as it would, if it ran from today’s date. I have then considered whether I should make an order and have it take effect upon your release from custody, whenever that may be. It is only in that way that there would be a direct impact upon you. The sentences I have pronounced impose significant punishment upon you. I think it is likely that getting your licence back upon your ultimate release whenever that is, may play a role in your rehabilitation as you seek to re-establish yourself in the community.
92 It is for these reasons and in those circumstances that I have decided not to make any orders against your licence.
93 Let me just see if there are any other orders that I need to make.
94 Mr Sprague, are there any other orders I need to pronounce?
95 MR SPRAGUE: No, Your Honour, nothing. No, Your Honour, nothing else sought.
96 HIS HONOUR: All right, Ms Kriger, anything that occurs to you?
97 MS KRIEGER: No, Your Honour.
98 HIS HONOUR: All right, and do each of you understand the individual sentences and the structure of the sentences.
99 MS KRIEGER: Yes, Your Honour.
100 MR SPRAGUE: Yes, Your Honour.
101 HIS HONOUR: Yes, all right. Well, that completes the matter then. No doubt your legal representatives will engage in some video conference with you or some phone conference with you in the not too distant future, Mr Schmidt, but that completes the matter for now. Are there any custody management issues? I mean, he's been in custody. He is remaining in custody. Are there any custody management issues I need to flag at all or not? No?
102 MS KRIEGER: No, Your Honour.
103 HIS HONOUR: All right, well look thanks for your attendance. I am sorry that it has been a bit of a stop-start process today but what I will do then is I will disconnect the various links. That completes the matter. I have signed the formal order but for the for moment I will disconnect the links, thank you. And disconnect the WebEx as well. Yes.
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