Director of Public Prosecutions v Seeman (a pseudonym)
[2019] VCC 2231
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SEEMAN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE M. SEXTON | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 3, 4, 7-11, 14-17 October; 12 December 2019 | |
DATE OF SENTENCE: | 20 December 2019 | |
CASE MAY BE CITED AS: | DPP v Seeman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2231 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Aggravated Burglary – Intentionally Cause Injury – Common Assault
Legislation Cited:
Cases Cited:Filizv The Queen [2014] VSCA 212 – DPP v Meyers (2014) 44 VR 486 – Gale v The Queen [2014] VSCA 168 – Pasinis v The Queen [2014] VSCA 97 – Kalala v The Queen [2017] VSCA 223 – Degneyv The Queen [2019] VSCA 183 – Lim v The Queen [2019] VSCA 182 – DPP v Smith [2019] VSCA 266 – Ryan v R (2001) CLR 267 – Guden v The Queen [2010] VSCA 196 – Akoka v The Queen [2017] VSCA 214
Sentence: TES – 7 years’ imprisonment with a minimum of 4 years 10 months to be served before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Mr P. Stefanovic | Criminal Lawyers Geelong |
HER HONOUR:
1 Benjamin Seeman[1], on 17 October 2019, after a trial, you were found not guilty of a charge of criminal damage; guilty of a charge of aggravated burglary, which has a maximum sentence of 25 years' imprisonment; guilty of two charges of intentionally causing injury, which has a maximum sentence of 10 years' imprisonment; and guilty of a charge of common assault, which has a maximum sentence of 5 years' imprisonment.
[1] This is a pseudonym name.
2 I will summarise the events the subject of the offending and which by their verdicts the jury has found took place. This forms the basis on which I sentence you.
3 As at October 2016, you had been in an intimate relationship with Renee Fuller[2] for about 10 years. You had separated and reconciled on a number of occasions and had a son together, then aged about three and a half years. Ms Fuller also had a daughter, Mara[3], then aged 13, living with her. You kept separate houses but stayed overnight for several days a week at each other's house in a regular pattern. You were a family unit, and the offences you committed were offences of violence to your family, which is an aggravating feature of all your offending.
[2] This is a pseudonym name.
[3] This is a pseudonym name.
4 On 29 October 2016, you, Ms Fuller and the children attended a memorial function which involved travelling to various locations, where alcohol was available. You have six adult children from an earlier marriage, and one of those daughters, Mary Seeman[4], was the designated driver for the day.
[4] This is a pseudonym name.
5 There was considerable questioning at the trial about the level of alcohol consumption of Ms Fuller over the course of the day and evening at the memorial function at various locations. This was submitted to be relevant to her reliability and credibility. From the jury's verdicts, it can be seen that where her evidence was supported by another witness, principally her daughter Mara, the jury were satisfied as to Ms Fuller's account, despite any consumption of alcohol by her.
6 Insofar as it is relevant for sentencing purposes, I find, on the basis of the only piece of independent evidence, being Ms Fuller's blood alcohol content reading at about 6.50 am the following morning, that over the course of the day and night she consumed a sufficient amount of alcohol to produce a reading of 0.094 per cent. I do not accept the evidence of Ms Seeman about Ms Fuller's consumption of alcohol.
7 There was no discussion on the plea about any consumption of alcohol by you. Ms Seeman said you consumed no alcohol that day; Ms Fuller said that she saw you drinking something earlier in the day but did not know what. Ms Fuller said that when she returned from taking the children home, she observed you to be extremely intoxicated and it was in this context, she said, that you became abusive to her. Mara said that when you all got back to the clubhouse, which was the last venue, you “started drinking full-on”.[5] Later when you came into her room to take your son from her, she described you as very alcohol-affected and really angry.[6]
[5] VARE 9 November 2016, A127.
[6] ibid A188-191.
8 As I will come to later, you have had serious health issues for some time and drinking alcohol is ill-advised. However, you have not until recently taken the care of your own health that you should, and so it is not out of the question that you did consume alcohol on the day of the memorial function three years ago. As I heard no submissions about this, I make no finding. Ultimately, whether you acted in the early hours of 30 October in the way that you did out of sheer anger, or whether that anger was fuelled by alcohol consumption does not matter; it was a terrifying entry to the house for Ms Fuller and the children, and the violence that then took place in and outside the house was equally terrifying.
9 At the end of the afternoon of 30 October, Ms Fuller took her children back to her house, driven there by Ms Seeman. Ms Fuller had arranged for a babysitter and, after the children were fed and settled, she returned to the function, again driven by Ms Seeman.
10 Later, in the early hours of the morning, I find that you and Ms Fuller had an argument and you told her to 'fuck off'. Because of the argument, she left the function, walked to a service station, and from there caught a taxi to her house, arriving home sometime between about 2 am, when Mara went to bed and her mother was not home yet, and 4.25 am when a neighbour first called 000.
11 Ms Fuller had been home only a very short time when you and Ms Seeman arrived in her car, which she parked on the front yard of Ms Fuller's house. While you stayed in the front passenger seat, Ms Seeman went to the front door and knocked.
12 What took place thereafter was the subject of hotly contested evidence at the trial. On the basis of my own assessment of the evidence, and consistent with the jury's verdicts, I accept Ms Fuller's version and find that that you had come to her house to collect your son because you were angry with her, and I do not accept that you had come to her house in the early hours to collect your house keys.
13 When Ms Fuller answered the door, Ms Seeman told her that you wanted your son, James[7]. Ms Fuller informed her that James was asleep and you were not getting him. Ms Seeman went back and forth to speak to you in the car a number of times, returning each time to tell Ms Fuller that you were insisting on taking him. Ms Fuller invited Ms Seeman in to confirm that James was sleeping and, despite the earlier argument you had with her, she told Ms Seeman that you could stay the night so that you could see him in the morning.
[7] This is a pseudonym name.
14 Ms Seeman went in and saw James asleep, and then returned to her car. At this point, you got out of the car and approached the front door. Ms Fuller locked the security door but kept the main front door open. You went to the front door and began banging and kicking at the security door. You were also yelling abuse at Ms Fuller, including words to the effect that you were going to kill her and take James. This threat is not the subject of any charge and you are not to be sentenced for that act but it provides the context for what then occurred.
15 Ms Fuller pushed the main front door in an attempt to close it, but you barged through the security door, breaking off the handle of that door in the process, pushed the front door open and entered the house.
16 I pause here to recognise that we have now got a video link to the complainant where she is supported, at a location in Geelong. I indicate to those who have just come online that I am going through my summary of the offending conduct.
17 Returning to my sentencing remarks, at the time you barged in, Mr Seeman, you intended to assault Ms Fuller and you knew of course that she, and the children, were in the house. That is the subject of charge 2 of aggravated burglary.
18 You carried out your intention to assault her immediately after you entered, by striking Ms Fuller to the head a number of times using a piece of wooden chair that you had picked up from the front yard. She was injured and felt blood running down her face. She fell to the floor and pretended to be knocked out in the hope that you would stop the assault. That assault is not the subject of a charge and you are not to be sentenced for that act, but it shows that you acted immediately on the intent to assault her that you had at the time of entry and is relevant to charge 2.
19 The babysitter was a reluctant witness who was only at court to give evidence because of the warrant I issued for his arrest. His memory for the events was poor, but I find on the basis of Ms Fuller's evidence that he was present when you burst into the house and that, after you struck her, he got up from the couch and asked you what you were doing. You and he had not met before. When you responded to him belligerently and abusively, Ms Fuller got up off the floor and told the babysitter to run, which he did. Her account of his swift departure from the house was supported by a neighbour over the road, who, disturbed by the ruckus you were causing at the front door, was on the phone to a 000 operator and described a tall skinny man running away as fast as he could. That description fits the babysitter. It also shows how terrifying your entry to the house was.
20 Your frightening entry to the house also woke your son, who went into his big sister's room because he was scared. Mara began comforting him. You had returned your attention to Ms Fuller after the babysitter left and were demanding to know where James was and that he be given to you. You made your way down the hallway and Ms Fuller was attempting to halt your progress. It is important to note that you are a very large man, and even larger then, about 200 kilos, as you have apparently lost 35 kilos since these events and still weigh 162 kilos, as recently weighed.[8] Ms Fuller on the other hand is a diminutive woman of 5 feet tall, and weighed about 50 kilos. She had no hope of stopping you.
[8] See Exhibit 3 – Report of Dr John Gall.
21 You went to Mara's room and told her “Give me the fucking baby”. You then took James from her arms and handed him to Ms Seeman, who took him out to her car. Ms Fuller was attempting to stop all this from happening and you turned your attention back to her and held her up against the architrave of the bedroom door and began punching her to the face several times before she fell to the floor. The results of that attack on Ms Fuller, which were witnessed by Mara, are the subject of charge 3 of intentionally causing injury.
22 I find you then performed actions that Ms Fuller described as 'rag-dolling' her, in other words, throwing her around as if she were a rag doll. These actions are not the subject of any charge but show that the assaults that caused the injuries that are charges were not isolated acts but part of a continuing attack on her.
23 You left the house and Ms Fuller picked herself up and followed you out, desperate to get James back. Ms Fuller described you as continuing to 'rag-doll' her around the front yard, as well as hitting her with your fists, and, after picking up another piece of wood, hitting her with that while you held her on the bonnet of Ms Seeman's car. Mara followed you both out and saw that you had picked up what she described as a chair leg and you had Ms Fuller pinned to the bonnet by holding her by her throat and were hitting her to the head with the chair leg, particularly around the eye area. At some stage, you missed hitting her head and instead hit the windscreen, cracking it. The results of that attack on Ms Fuller are the subject of charge 5 of intentionally causing injury.
24 Ms Fuller either rolled off the car or was pushed to the ground by you, where she lay, passing in and out of consciousness. You approached her, and Mara bravely got between you and her mother telling you to leave her alone. You picked up another piece of wood and chased Mara to the kerb with it, saying, 'Come here, you little bitch'. That is the subject of charge 7 of common assault by threatening Mara with the piece of wood.
25 Ms Seeman had by then strapped James into a car seat and urged you to leave. Ms Fuller was still on the ground and you said words to the effect of 'Run the bitch [or moll] over'. Ms Fuller roused enough to see the car moving slightly and Mara, again courageously, got between her mother and the car. Ms Seeman then drove you and James away from the scene.
26 By this time, the neighbour had rung 000 twice and, after you left, Mara also rang 000. Police attended shortly after, followed by an ambulance, and Ms Fuller was taken to hospital. Ms Fuller was there for three days before discharging herself to retrieve James from the custody of Ms Seeman.
27 Over the course of her time in hospital, Ms Fuller was observed to have a 3 centimetre cut above her left eye which was sutured, a large bruise around that eye, a superficial cut on her left cheek and small abrasion across her nose; a front tooth was gone and she had multiple bruises on her upper and lower limbs. A 1.5 centimetre splinter was removed from her eyebrow.[9] Scans showed no fractures or internal injuries. In her evidence she referred to more teeth falling out later as a result of the assaults and now has four teeth missing.[10] There was, however, no up-to-date medical evidence provided to me.
[9] Exhibit on the trial – Jury folder, Tab 7: photos of injuries; Exhibit K - splinter.
[10] See also Exhibit 1 on the trial.
28 It is impossible to disentangle her injuries to say which are referrable to which injury charge. However, I sentence you on the basis that the jury found you had caused injuries to her, first, when punching her to the face while holding her against the architrave inside the house (charge 3); and, second, when hitting her head with a piece of wood, whether the chair leg as described by Mara, or the piece of wood as described by Ms Fuller, on the bonnet of the car (charge 5).
29 Your counsel submitted that a piece of splintered wood found at the scene[11] and which contained bloodstains was likely to have been the source of the splinter which was removed from Ms Fuller's eyebrow. While that is possible, evidence showed that you were the major contributor to the stain closest to the splintered end on that item and there was only slight support for Ms Fuller being a contributor to that stain. I make no finding as to which piece of wood you used at which time. A number of pieces of wood with blood stains on them were found at the scene.[12] It is the use of a weapon that is the relevant factor for sentencing.
[11]Exhibit C on the trial, the third longest piece of wood in that exhibit.
[12] Exhibits B, C and D on the trial. With the exception of the piece from a chair, the pieces of wood were very light.
30 I received a victim impact statement from Ms Fuller and as she did not want it read out in court I will respect her wishes and not refer to it in its detail. I have read it and I take the impact of your offending on her and the two children into account in deciding the appropriate sentence. Both Ms Fuller and Mara made it clear in the way they gave their evidence what a terrible impact the events have had and continue to have on them. Mara appeared in her VARE to be a remarkably mature 13-year-old, but the long term impact on her of having to stand between you and her unconscious mother may not yet be known. Your three and a half-year-old son saw and heard too much of the events. He was frightened when he woke up on hearing you barging into the house and then, from his car seat where he had been placed by Ms Seeman, he would have witnessed you hitting his mother while holding her onto the bonnet of the car. He may well have seen more of what happened in the front yard. If it is true that, now aged seven and a half, he does not want to see you, then the reason for that is almost certainly because he saw you attack his mother in such violent fashion.
31 Even without Ms Fuller taking the opportunity to tell me in her words how your actions have affected her, the events as I have described them above have already informed me of what a terrifying experience this was for her and for the two children, and it is no surprise that it is having an ongoing impact three years later. I do hope that with this sentence closing this chapter that Ms Fuller will be able to begin to feel less fearful and begin to reclaim her life. I do wish Ms Fuller, Mara and James well for the future.
32 Aggravated burglary is a very serious offence, as is shown by the maximum sentence of 25 years, which is the highest in the criminal calendar after life imprisonment. Any offence involving injury caused to another person is serious and a common assault can also be serious, depending on the circumstances of its commission; threatening a child with a weapon is a serious example of a common assault.
33 There are a number of factors that make your offences serious examples of each type of offence.
34 First, they were all committed in the context of an intimate relationship. The courts have made it clear[13] that there is a particular seriousness of offending involving domestic partners, whether current or former. It is therefore irrelevant that you were not always living in the same house.
[13] Filiz [2014] VSCA 212; Meyers (2014) 44 VR 486; Gale [2014] VSCA 168; Pasinis [2014] VSCA 97; Kalala [2017] VSCA 223; Degney [2019] VSCA 183; Lim [2019] VSCA 182; Smith [2019] VSCA 266.
35 In 2014, the Court of Appeal said,
'Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful [former] partners are truly shocking'.[14]
[14]Meyers ibid
36 The court went on to say that even in a case which does not fall into the worst category, which is your case, those cases they referred to are symptomatic of what can be fairly described as an epidemic of domestic violence. The judgement of the Court of Appeal continued:
'Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a [former] spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison'.[15]
[15] ibid
37 Next, the aggravated burglary you committed has a number of features[16] that on assessment make it a serious example of that offence:
[16] ibid
· As I have said, it was an 'intimate relationship aggravated burglary',[17]
[17] Sentencing Advisory Council, Aggravated Burglary – Current Sentencing Practices (June 2011)
· Your intent at the point of entry was to commit assault on your intimate partner;
· You entered by forcing a security door which she had locked to prevent you coming in, and through a main door she was attempting to close;
· Although not particularised on the indictment as an aggravating feature, you did enter with a weapon, because it is conceded on your behalf on the basis of the jury verdict, that you entered with a piece of wood picked up spontaneously in the front yard;
· You acted on your intent and used that piece of wood immediately on entry to assault Ms Fuller;
· The burglary took place in the early hours of the morning sometime between 2 am and 4.25 am and was an impermissible entry into Ms Fuller's home, where she was entitled to feel safe; and
· You knew that Ms Fuller, Mara and James would be inside and also knew that Ms Fuller was at or near the front door, because your daughter Ms Seeman had spoken to her there a number of times before returning to her car to speak to you.
38 The features that make the injury charges more serious are the facts that the two charged offences occurred as part of a sustained physical attack on Ms Fuller; that you were far bigger and more powerful than her and used that to your advantage; and for charge 5 that a piece of wood was used to inflict the injuries. It is not a mitigating factor, or a factor making the injury charges objectively less serious, that you could have used your size and power to injure her more severely but did not.
39 The features that make charge 7 of common assault a serious example are that Mara was your stepdaughter and aged only 13 when you chased her with a piece of wood; the fact that you used a weapon to make her fear that you would use it to assault her if you caught her; and that you were far bigger and more powerful than her.
40 I find that the objective gravity of all the offending is very serious and that your moral culpability is high. It was a cowardly sustained attack on your powerless and diminutive partner of 10 years undertaken in the view of your stepdaughter and son, and included threatening behaviour towards your stepdaughter.
41 I turn now to the matters that have been submitted on your behalf to be considered in mitigation of the seriousness of that offending.
42 First, I acknowledge that of course you are entitled to plead not guilty, as is the right of every person, but it follows that you receive no mitigation that accrues to a prisoner who has pleaded guilty and, even more so, has also shown remorse. Here there is no remorse and no concern expressed for the impact on Ms Fuller, Mara or James, just a lack of insight as to the effect of your conduct on the children.
43 Next, I take it into account in your favour that you have no criminal convictions or findings of guilt, and so you are to be sentenced at the age of 59 as a person with no prior or subsequent convictions.
44 Next, apart from the offending, I accept that you are otherwise of good character,[18] which is also in your favour. You are highly regarded, as shown by the references[19] I received from people who consider you to be generous and caring. They do not see you as the person who committed these serious offences. Their ongoing support of you is important during and after your time in custody.
[18]Ryan (2001) 206 CLR 267, [23]-[25]
[19] Exhibit 2
45 I do, however, want to say something to those who stated in the references what a great family man you are. True it is that you are very close with the adult children of your first marriage, and your grandchildren, and family is very important to you. What seems to have been forgotten by some writing those references is that Ms Fuller, Mara and James were your family too and equally entitled to your love, respect and protection, especially in their own home. In the early hours of 30 October 2016 they did not get that. Also, as I said to your counsel on the plea, I ignore any statements in the references that challenge the outcome of the trial.
46 Next, I heard some aspects of your background and I take that into account. You were born in New Zealand where, after leaving school at 16, you worked mainly in labouring and construction. You were married in 1978 and had three children. The family moved to Australia in 1989 and you and your wife had three more children here. After your marriage ended, your former wife moved interstate. As I have said, you have grandchildren now. I have already outlined your relationship with Ms Fuller. You were a stepfather to Mara since she was aged two and James was born to you and Ms Fuller in 2013.
47 It was submitted that your family relationships are your whole life and that your Maori ethnicity celebrates family connections, especially the bond between father and children and grandchildren. You have not seen James since 30 October 2016 and this saddens you. Contrary to what some of your friends believe, you have chosen not to pursue contact with him for your own reasons. It is a loss to your son, as well as to you, to not have an ongoing relationship with his father, but, as I have already said, if this is driven by his choice, that is not surprising given what he witnessed you doing to his mother.
48 You are on a disability pension and two of your daughters provided daily support to you in your home due to your medical conditions, which I turn to next.
49 The two matters that are relied on as the most significant in your personal circumstances are your ill-health and the possibility of deportation.
50 I received a report from Dr John Gall[20] which was most informative but from your perspective, unfortunately, clearly shows that you have very serious health issues. In his opinion, you have about a dozen old or active medical conditions, with the most significant being your diabetes mellitus with complications of vascular disease and diabetic retinopathy, and your cardiac condition. The other conditions are mostly related to those.
[20] Exhibit 3.
51 You have been morbidly obese for some years and stopped smoking in 2012. However, you only began addressing your diabetes in 2019 and your failure to address it earlier has led to complications and probably to the development of other conditions. Your current treatment is based on dietary restriction, oral medication and use of injectable insulin. Despite coming late to the realisation that you must follow the doctors' recommendations, testing in August this year indicated a successful outcome of your treatment, with most parameters in normal range. Dr Gall considered your diabetes to be now under some degree of control.
52 As to your cardiac condition, Dr Gall was unable to be certain of the extent of it but referred to documented evidence of congestive heart failure; cardiomyopathy, being damage to the heart muscle; and atrial fibrillation, being abnormal heart rhythm. Each of these contributes to a reduced ability for the heart to pump sufficient blood to meet the needs of the body. All may result in sudden unexpected death, and atrial fibrillation may also lead to a stroke.
53 Because you have not been proactive in relation to your health in past years, and because of Dr Gall's view that experience indicates that prisoners need to take a proactive approach to their healthcare while imprisoned and a prisoner's health may deteriorate in prison, he anticipates that a custodial sentence would result in deterioration in your health and this may subsequently lead to a reduced life expectancy and perhaps premature death. He also noted your limitations in your ability to see, to mobilise and to put your socks and shoes on without assistance. His ultimate opinions are that a sentence of imprisonment may aggravate your medical conditions and lead to a reduced life expectancy and that your time in custody would be more onerous than for someone without your conditions.
54 On that last point, the prosecution concede, and I accept, that serving a sentence of imprisonment would be more onerous for you because of your serious medical conditions and your limitations. I have taken that into account in the exercise of my sentencing discretion.
55 While I accept Dr Gall's view that experience indicates that prisoners need to take a proactive approach to their healthcare while imprisoned and that a prisoner's health may deteriorate in prison, I note that experience also indicates that the health of some prisoners improves or at least stabilises because of better management of medical needs and other lifestyle improvements, such as diet, in a closed environment. Experience also indicates that Justice Health manages prisoners with many and varied serious and life-threatening health conditions and meet their medical needs sometimes better than they were being met when the prisoner was in the community and not managing very well on their own.
56 There is no evidence before me of your personal prognosis as opposed to the life expectancy of patients generally with congestive heart failure, nor is the full extent of your cardiac condition known. However, I take the potential for a reduced life expectancy into account because of your conditions and that a term of imprisonment may negatively impact on your already compromised health.
57 You are a permanent resident but not an Australian citizen. Your greatest fear about receiving a prison sentence today is that if it is 12 months' imprisonment or more your visa will be automatically cancelled and you will be deported.[21] You have not returned to New Zealand in the 30 years since you arrived in Australia and you have not kept in contact with relatives there. If deported, you would lose the support of, and close contact with, your children and grandchildren and may not be able to reconnect with family in New Zealand or, if you do, obtain such intensive practical and emotional support as you have here.
[21]Migration Act (C’th) 1958 (as amended).
58 I take into account that a sentence of imprisonment would weigh more heavily on you because of your concerns about being deported.[22] However, if it is more than 12 months and your visa is cancelled, you have a right to have that decision reviewed. As best as I can assess the prospects of a successful review,[23] you have in your favour previous good character with no other criminal history during the 30-year period of living in Australia and have strong ties to your immediate family in Australia, with no ties to your extended family in New Zealand. I have taken that into account in the exercise of my sentencing discretion.
[22]Guden [2010] VSCA 196.
[23] Sentencing Advisory Council, Deportation and Sentencing – An Emerging Area of Jurisprudence (November 2019)
59 Turning to an assessment of your prospects for rehabilitation, because of your lack of criminal history and your previous good character I find that the chances of your rehabilitation are good despite the serious nature of the offending. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of you reoffending in the same way, which I find to be low noting that you have no further contact with Ms Fuller. Your ill health may also play a role in making it less likely that you will reoffend, although I note that at the time of the offending in 2016 you suffered from a number of the conditions Dr Gall referred to and committed the offences despite that.
60 Lastly, I take into account that there has been delay in this matter coming to trial due to the workload of the Geelong County Court. I also take into account that you have been through two trials with the first jury unable to reach a verdict earlier in 2019. Throughout the three-year period since the offences, you have been compliant with all bail conditions and reported to police twice a week, which your counsel calculated to be over 300 times. The time it has taken to get to verdict is no fault of yours and I take that delay into account in your favour.
61 Application has been made for an intimate forensic sample to be taken from you and through your counsel you have consented to this. I am satisfied that it is in the interests of justice that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind the sample to then be taken is a blood sample and police may use reasonable force to enable such a procedure to take place. I have signed that order.
62 You have also consented to the forfeiture and disposal of items seized during the investigation. I have signed those orders.
63 Turning finally to the submissions on the appropriate sentence, the prosecutor submitted that even taking into account the matters in your favour, and in particular your previous good character, the offences called for a sentence of imprisonment involving a head sentence and a non-parole period.
64 On your behalf it was conceded that it would be a rare case that would escape a prison sentence in the circumstances of this case. Your counsel submitted, however, that an element of mercy can and should be taken into account in your case and that it was open to the court to impose a sentence of imprisonment of less than 12 months with release on a community correction order.
65 The Court of Appeal has repeatedly emphasised[24] the need for sentences for aggravated burglary, particularly confrontational offending which involves an intimate partner and where actual violence is meted out, to properly reflect the maximum penalty of 25 years and meet all the sentencing objectives.
[24] Filiz [2014] VSCA 212; Meyers (2014) 44 VR 486; Gale [2014] VSCA 168; Pasinis [2014] VSCA 97; Kalala [2017] VSCA 223; Degney [2019] VSCA 183; Lim [2019] VSCA 182; Smith [2019] VSCA 266.
66 The Sentencing Snapshots produced on the plea[25] show this may not yet have been achieved. I note that these statistics are based on all cases heard in the higher courts and the majority of those cases are pleas of guilty where the prisoner gets the benefit of a reduction in sentence on a utilitarian basis at the least, a benefit that does not accrue to you.
[25] Exhibit 4
67 In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving confrontational aggravated burglary involving an intimate partner. That means that by my sentence of you the court must seek to deter other men from committing such offences, especially against intimate partners. I find that my sentence has a much lesser role to play in deterring you from reoffending, known as specific deterrence, because of the factors in mitigation.
68 The court must impose a sentence that is just in all the circumstances and that reflects the community's abhorrence of family violence and denounces such offending particularly committed against intimate partners and children.
69 For all the reasons I have set out, I do not think this is the rare case where a sentence of imprisonment does not need to be imposed or where an element of mercy is appropriate to reduce the sentence below the level that is required in a proper application of all relevant sentencing principles and objectives.[26] A sentence of less than 12 months combined with a community correction order is not an appropriate sentence or within the range for this case. Having formed that view, I have not had you assessed for a community correction order.
[26]Akoka [2017] VSCA 214.
70 I can only impose a sentence of imprisonment if it is the only alternative open to me. For the reasons given, I am of the view that there is no alternative. I have taken all relevant factors into account in mitigation and as a result will impose a head sentence of imprisonment and a non-parole period less than would otherwise have been imposed, but the sentences will still be lengthy in accordance with the authorities which I referred to earlier. In particular I repeat:
'Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a [former] spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison'.[27]”
[27]Meyers (2014) 44 VR 486.
71 Balancing all the relevant and competing factors as best I can, you are convicted and sentenced as follows. I do not require you to stand up.
72 On Charge 2 of aggravated burglary - 6 years' imprisonment;
73 On Charge 3 of intentionally causing injury – 2 years' imprisonment;
74 On Charge 5 of intentionally causing injury – 2 years 3 months' imprisonment;
75 On Charge 7 of common assault - 12 months' imprisonment.
76 The sentence on charge 2 is the base sentence. I direct that six months of the sentence imposed on charge 7 and three months of the sentences imposed on charges 3 and 5 be served cumulatively on the sentence imposed on charge 2 and on each other. That makes a total effective sentence of 7 years.
77 I direct that you serve 4 years 10 months before becoming eligible for parole.
78 I declare that you have served 30 days in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
79 Mr Grant and Mr Stefanovic, could I just check that is the correct amount of pre-sentence detention.
80 MR GRANT: It is, in my submission, Your Honour.
81 MR STEFANOVIC: It is, Your Honour.
82 HER HONOUR: Thank you. And, Mr Grant, there are no other orders?
83 MR GRANT: No, thank you, Your Honour.
84 HER HONOUR: All right. Mr Stefanovic, I take it that you would be speaking to Mr Seeman at some point?
85 MR STEFANOVIC: I shall be, yes.
86 HER HONOUR: Yes, all right, thank you. Yes. Well, I thank everyone for their attendance and assistance throughout the long history of this matter and I will now disconnect all video links.
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