Director of Public Prosecutions v Sefer

[2021] VCC 1733

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR 21-01589

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA SEFER

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2021
DATE OF SENTENCE:	5 November 2021
CASE MAY BE CITED AS:	DPP v Sefer
MEDIUM NEUTRAL CITATION:	[2021] VCC 1733

REASONS FOR SENTENCE
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Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Michael Wilson	Office of Public Prosecutions
For the Accused	Mr Brett Tait	Tait Lawyers

HER HONOUR:

1     On 16 December last year you, Joshua Sefer, were sentenced to a term of imprisonment to be followed by a community correction order on charges including using a carriage service to harass, and threatening to rape.  Those charges were committed by you in the course of a campaign you had waged against two young women, to whom you bore a grudge.  You were also dealt with for unrelated charges of assault, and breach of a family violence intervention order, aimed, as I understand it, at protecting your partner.

2     You were released on 16 January 2021.  Over the next week, you sent a series of threatening and abusive messages to the father of a 15 year old boy who, you were told, had engaged in sexual activity with your 13 year old daughter during the time you were in custody.  Following the revelation by your daughter to her mother she had engaged in sexual activity, your partner referred the matter to the police and was unhappy that the police investigation had not proceeded.  It would appear that your daughter had declined to make a statement and, as a result, the police had declined to pursue the investigation.  Police and the Department of Families, Fairness and Housing, had been called on to intervene between your daughter and her mother, an existing family violence intervention order against your partner in favour of your daughter was varied, and she was removed from her mother’s care.  The child remained in out of home care at the time of your release from custody.

3     In the days following your release, you sent a series of increasingly threatening messages to the father of the boy alleging that the boy had raped your daughter, and demanding he, the father, meet you.  He did not respond to the messages or threats.  On 24 January, eight days after your release, you and your partner went to the house where the boy and his father lived.  You went by taxi, telling the driver to wait, as you would only be five minutes.

4     When you arrived at the house, the two of you got out of the taxi and banged repeatedly on the door, demanding that you be let you in.  The father refused, and you, Joshua Sefer, forced the door open, pushing the father forcefully away causing him to fall back into the hallway as you entered.  You then elbowed him in the chest and continued to advance down the hall as he told you to leave.  The father retreated and then came back armed with a machete he apparently kept under his bed, and he advanced on you with the machete in his raised hand.  You in turn retreated, backing  down the hallway towards the door.  Meanwhile, your partner had gone into the boy’s room. She yelled in his face, grabbed him by the shirt, and as the father came into the bedroom and ordered her to get out, she leant forward, grabbed the boy and forcibly kissed him.  The father then left the bedroom, came back to the hallway where you were and charged at you, forcing you out of the house.  Your partner followed, grabbing the machete from the father and throwing it away.  The father disappeared inside, and again reappeared armed, this time with a knife.  Meanwhile, you who  were by then outside, having been driven away by the machete bearing father, had picked up two garden ornaments and thrown them at two windows of the house, damaging them both.  Your partner then picked up the machete, and the two of you went back to the taxi and directed the driver to take you back home.

5     After you got back home, you made a number of calls to police, making false allegations about the boy and his father and about your daughter.  You said your daughter had falsely accused you of damaging the house and falsely alleged that she was at the house and at risk.  You asked police to conduct a welfare check.  Police in fact had already been to the house because the father had called Triple 0 after the attack and they conducted further welfare checks on your daughter during the rest of the day or evening.  They confirmed that she was not at the house, and was not at risk from the occupants.

6     You were arrested the following day.  The house was searched, and the machete was found on the dining table.  When questioned, you denied ever having been to the house, and denied any involvement in any attack on the occupants.  You said that you had begged the police to help after you reported the boy had stolen an iPad, and agreed you had asked the police to conduct a welfare check on your daughter, at that address the previous night.

7     It is as a result of that conduct that you are now before the court to be sentenced for one charge of aggravated burglary (entry as a trespasser, intending to assault, knowing a person was present), and one charge of criminal damage (relating to the two separate acts of breaking the windows by throwing garden gnomes at them).

8     Aggravated burglary is punishable by 25 years' imprisonment, and criminal damage by 10 years.  That is one indicator of the seriousness with which parliament and the community regards those offences.

9     The explanations advanced by you are, in my view, not mitigatory.  You assert that you believed your daughter had been raped, you wanted to “have a conversation” with the father of the boy, and you went to the home because your attempts to initiate a “conversation” had been ignored.  It was also put that when you went there, you were under the influence of drugs and alcohol.  None of that is mitigating.  You knew police and the Department of Families, Fairness and Housing were involved.  The inference is clear, that you were angry and frustrated that they had not pursued the investigation, that the boy had not been charged and that your daughter had been removed from family care as a result of the fallout, of her recounting to her mother something about what had happened between her and the boy. 

10   This was nothing more than you deciding to take matters into your own hands, and acting on what can only be called your one-sided, and in that sense  ill-informed belief, as to what had happened and what consequences the boy and his father should suffer.  You initiated vigilante action, engaging in a violent act of confrontation.  To seek to defend your actions by saying you were protecting your daughter out of love for her, is to delude yourself, Mr Sefer.  This was not about her rights or wishes.  This was about retaliatory or possessive violence.  It was motivated by your anger at what had happened. 

11   There is no place for that in our community or in any civilised society.

12   It was put on your behalf that it was not a very serious example of an aggravated burglary.  You were not armed, your intention, it was said, was of heated confrontation, but when you arrived it escalated to assault, and there was no violence, other than the forearm to the chest, and you left the scene before things escalated.

13   I disagree.

14   In my view this is a serious example of a serious offence.  By your plea, you forced your way in, as the victim was denying you entry, and you have pleaded guilty to entry as a trespasser intending to assault, not violent verbal confrontation, but intention to assault.  You initiated this.  You took a taxi across town to do so, you had plenty of time to cool down, to think again, and to withdraw before arrival.  And in fact having regard to the circumstances that had led to your most recent term of imprisonment, and your release following that term on a community correction order, with conditions designed to assist you to manage your substance abuse and your anger, and to address your previous history of engaging in retaliatory violence for harms you perceived to have been done to you, it is particularly relevant that you had the time to cool down, think again and withdraw before arrival.  You were subject to a court order that you not commit further offences and engage in treatment to address those underlying problems that so often had contributed to your offending in the past, and had on the last occasion, contributed to your offending.

15   It occurred in the presence of the child, a 15 year old but a child, a child who you asserted had raped your daughter.  The inference is inescapable, that what you did was designed to intimidate and instil fear and perhaps to control, as best you could, who your daughter saw.  That it did not escalate further is nothing to do with you.  You were repelled by the victim, who had armed himself with a machete.  And confronted by that and the immediate threat to you, you wisely retreated and ran away.  You threw things at the window on your way out in what was, I accept, an act of anger and revenge rather than something designed to further the intimidatory action you had engaged in.

16   Confrontational aggravated burglary as this is, is a serious form of aggravated burglary generally, and it is clear therefore that denunciation and general deterrence are both significant sentencing factors here.

17   You have admitted a criminal history going back over 20 years.  Your offending covers multiple charges of violence, making threats, stalking and breaching intervention orders, multiple charges of criminal damage, weapons offences, dishonesty offences, breaching of court orders (bail, community correction orders, family violence intervention orders and court orders disqualifying you from driving), a range of speeding and other driving offences, drink driving and other drunkenn and anti-social behaviour offences.

18   On my count there have been over that 20 years, 12 separate hearings, many of them dealing with multiple charges or clusters of charges, apparently consolidations. You have been exposed to the whole range of adult sentencing options: adjourned undertakings, fines, community correction orders and imprisonment.  Repeatedly, in almost every order, rehabilitative conditions have been attached to sentencing orders, directing that you engage in drug and alcohol assessment and treatment, and mental health assessment and treatment.  Supervisory conditions, including judicial monitoring have repeatedly been imposed also.  But sadly, no orders, and no conditions, have been effective in engaging you in treatment or keeping  you from further offending.

19   For your last sentence you had, for what appeared to be the longest period in your life, engaged in some sustained treatment through Anglicare for alcohol and other substances abuse issues.  That shows that you do have a desire to address your substance abuse, and at times a commitment to persist with counselling.  That is very promising because it recognises the underlying problems leading to your offending and the need to address them.

20   In this case, as I have already noted, you had been released on a community correction order only a week earlier.  The charges there involved violence, and troublingly, threatening to do to two young women, who were part of your extended family circle, it would appear as punishment or revenge, the very thing that you were so enraged to think might have happened to your daughter.

21   The dissonance between your conduct on the previous occasion, and the conduct that you engaged in, in seeking to avenge what you perceived to be a harm to your daughter, is stark.  The boy’s father provided a victim impact statement.  He spoke not only of the deeply felt impact on him of this appalling and terrifying invasion of his home, of the fear, the loss of his sense of trust and safety, and the invasive reminders, flashbacks or triggers, but of the impact this had on his son.  The 15 year old who you believed, without a sound basis for actually knowing whether he had done so or not,  raped your daughter.

22   The boy (and I keep on calling him a boy because he was, at 15, still that) it appears from the father's victim impact statement, has an intellectual disability and also lives with ADHD and autism spectrum disorder.  His father reports that his son's behaviour, and attitude to life had changed, very much for the worse as a result of this.  One of the really distressing by-products of it, is not only the boy becoming detached from his schooling and being angry has become fixated on the plight of men as victims, often unacknowledged and unsupported, of family violence.  Your attack seems to have had a counterproductive effect if what you were trying to engender in him was a respect for women and their autonomy.

23   Not surprisingly, given this history, you were remanded in custody following your arrest, and you have remained there ever since, that is, for nearly 12 months.

24   It is clear from this history that specific as well as general deterrence has big role to play in sentencing mix, as well as giving appropriate weight to just punishment, encouragement of rehabilitation and protection of the community.

25   Turning then to matters personal to you.

26   You are 36.  You have been in a long-term relationship all of your adult life, really from your late teens.  It is a volatile relationship it would appear.  As I understand it part of your last sentence was for assault of and breaching family violence intervention order in respect of your partner.  You have  priors for family violence intervention order breaches.

27   There is one child of the relationship between you and your partner, the daughter to whom I have referred, and whose account of her engagement with the boy is behind all of this. You also have a stepson who is 23.  It was the stepson's partner and her sister who you menaced and threatened to rape, which gave rise to sentence you were still serving (that is by way of the CCO to which you were still subject following your release from the imprisonment portion of that sentence).

28   I accept that you love your daughter, and that looking after her and looking out for her is a significant motivating force, not only for your existence but also for you to lead a better, happier and more settled life.  But it would appear that you are poorly resourced to be able to consistently show your love in an appropriate way.

29   Your daughter has, at times, been removed from the care of you and your partner but as Mr Tait pointed out, you and your partner have tried hard to be better parents to her. Each time she has been removed, you have done your best to comply with the conditions imposed by, what was the Department of Health and Human Services, now the Department of Families, Fairness and Housing. On each occasion after her removal, she has ultimately been returned to your care, after you and your partner have satisfied the child safety workers you have worked to build the skills to be able to be good parents who can be trusted to have this child who is clearly loved in your care.

30   You have a poor history of employment in your adult years. You left school early and for the first few years after that, worked hard and held down regular employment.  But as you moved into your adult years, your alcohol and other drug abuse problems and the difficulties you had coping with life generally meant that your employment since then has been, I am told, sporadic, casual and unskilled.  You have a long history, a consistent history of alcohol and other substance abuse and that is reflected in that long criminal history that I have referred to.

31   The seeds of what can be called your unregulated behaviour, your substance abuse and its link with the cycle of offending, were sewn very early in your life.  Far too early,  at a time when no one can say you were responsible for what was happening to you. You were a victim.

32   You were exposed to violence, substance abuse and a volatile parental relationship it would appear from your very early childhood.

33   By the time you were eight your parents had separated, and you report by then it was clear that neither had treated their relationship as monogamous. You had been exposed to the anger and fallout from that, as well as to parental violence and substance abuse.

34   You remained with mother.  She, you describe, as an alcoholic and an abuser of other substances as well, a person who was abusive physically and emotionally violent and someone who, in your childhood, was incapable of setting or consistently maintaining or enforcing boundaries.  Not surprisingly that fed into your behaviour at school and your broader social engagement.

35   You were a poor learner, you were diagnosed at about the time of your parents' separation, so at about the age of eight, with ADHD. Although you were under treatment and care and you were prescribed dexamphetamine, you report that your mother helped herself to that rather than dispensing it to you.

36   You also report from a very early age, 13, of being exposed to and being introduced to cannabis and alcohol use by your mother, drinking and smoking with her at her behest and then developing a much broader polysubstance habit as you got a bit older and started spreading your wings.

37   Despite the difficulties your mother posed, you clearly were very close to her and you remained living with her and enmeshed in her life, but there was a lot of bad example from what you recount and it made it even more difficult for you to be able to step away from and overcome that awful early parenting experience.

38   It is clear, having recounted that, that unless assisted to address alcohol and other substances problems and your anti-social behaviour, you are going to continue on the cycle that you have been on for the whole of your adult life.  You are young enough to be able to make a significant change to your life and have a much better, happier, more pro-social life without a cycle of substance abuse and offending ahead of you. The sentence that I am imposing is designed to encourage you to work towards that, to give you supports to help you to work for that, so that you are better able to cope with the inevitable stressors that life brings to anybody.

39   A very helpful report was provided by the psychologist, Mr Simmons.  He concluded this:

It is respectively suggested that Mr Sefer would benefit from a referral to a psychiatrist to review his current treatment regime and to make any adjustments as necessary.  Mr Sefer's diagnosis of adult attention deficit hyperactivity disorder appears to be a robust one, initially made by a specialist service and further confirmed through a psychiatrist.  Mr Sefer would also benefit from a referral for further drug and alcohol counselling with a focus on in increasing self-efficacy, harm minimisation and relapse prevention strategies.  In addition, a referral to a psychologist who was aware of the behavioural techniques that can be utilised in an individual with ADHD may be of help in assisting Mr Sefer to develop a greater ability to deal with these issues in his life.  This could also assist with cognitive behavioural strategies to manage his life issues overall. 

40   I strongly endorse and support those recommendations.

41   As I discussed with Mr Tait in the course of the plea, in my view not only is a term of imprisonment inevitable for this, but the appropriate sentence is one that gives you the opportunity to engage in programs to help you start dealing with these issues before your release.  It is an incentive to work towards parole by demonstrating you have been engaging in programs and showing you want to accept the help, to help you to become a better, happier person who can live a better and more fulfilling life.

42   And then to give Corrections the time to have a considerable period where you can be supported and supervised on parole, so in that difficult time after release you will be supported and helped through the inevitable stressors that will occur then. So that by the time parole is over, you are going to be much better equipped to be able to deal with those stressors and to find ways of dealing with them, other than turning to abuse of alcohol or other drugs or turning to crime.  So that is the aim and the intention.

43   So with that in mind I recommend that Corrections, whilst you are in custody, provide to you so that you can, should you choose to engage in and do so, courses that will better equip you for a better safer life on release.  That includes courses dealing with anger management and conflict resolution, with better parenting because the skills involved in parenting a teenage child are very different from the skills involved in parenting a younger one, and you did not have the modelling for that in your own childhood to be able to apply.  So outside help is going to be of assistance.

44   I also consider obviously that courses in relation to alcohol and drug rehabilitation, assisting you to understand the impact of these substances on you, to identify the triggers that lead you to turn to them when you are suffering stress, and to find better ways of managing your distress and the anxieties and stressors of life other than turning to alcohol and drugs.

45   And vocational and employment enhancement, because having something meaningful to do is obviously a very important part of having a better, safer, happier life.  So I would urge Corrections to provide those courses to you, as well as the psychological and psychiatric reviews and assistance that have been recommended by Mr Simmons in custody, so as to equip you to be eligible for parole and then to be eligible for support and supervision on parole to help that transition back into the community.

46   Although your plea was initially put on basis of a term of imprisonment not much greater than the time you had already been on remand followed by a community correction order, after discussion with Mr Tait, that was, as I understand, not pressed.

47   In my view, it is clearly inappropriate for the reasons I articulated when I was discussing it with Mr Tait.

48   However, I do consider for the reasons that I have expressed a big gap between the head sentence and the non-parole period with supports, both during your sentence and upon release, is the best structure to assist you to assist yourself and therefore to assist and protect the community.  It is also obviously a sentence that is going to serve those needs of deterrence and denunciation.

49   I also take into account your plea of guilty; you pleaded guilty at a very early stage and the fact that any term of imprisonment during these times of COVID imposes significant additional hardship.  I take into account and apply all the matters that the Court of Appeal has said we should in Worboyes[1] and other cases as a result of COVID, and I give you full benefit for your guilty plea.  I accept its utilitarian value, its assistance in advancing the course of justice and also, with some limitations, I do accept it as an expression of remorse.  The features that have led to you offending are the features that make it difficult for you to see other ways out other than conflict and aggression, but I accept it as genuine your expressions of regret that you acted that way and that you did not and could not at the time think of other ways of dealing with it.  So that insight into the inappropriateness of behaviour, to me, is a very good start in terms of evaluating remorse and evidence that you do want to change your ways and have a better and happier life. It is a good time, your mid-30s or mid to late-30s, to do that.  There is plenty of life ahead of you where you can have a really good, fulfilling and happy life if you can use this time to help you deal with these problems.

[1] Worboyes v The Queen [2021] VSCA 169.

50   So all of those matters operate to reduce the sentence that would be otherwise appropriate and, to some extent, mitigate the weight that otherwise would be given to general and specific deterrence and to denunciation.

51   So balancing those matters as best I can, you are sentenced as follows.

52   On the two charges to which you have pleaded guilty, Mr Sefer, you are convicted.

53   On Charge 1 of aggravated burglary, you are sentenced to be imprisoned for a period of three years.

54   On Charge 2 of criminal damage, you are sentenced to be imprisoned for a period of nine months and I direct that three months of that be served cumulatively upon the sentence on Charge 1.

55   That makes a total effective sentence of three years and three months and I fix the period that you must serve before being eligible for parole at 18 months.

56 I declare that you have spent 284 days in pre-sentence detention. I direct that that be counted and reckoned as part of the sentence already served and I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you to a term of imprisonment of five years and six months and I would have fixed the period of three years as the time that you would have had to have served before being eligible for parole.

57   Let me just restate the actual sentence.  The total effective sentence of three years and three months and non-parole period of 18 months and the 284 days of pre-sentence detention taken into account and deducted as time already served.

58   Does the form in which I pronounced the orders correctly reflect what I said I intended to do?

59   MR WILSON:  It does, Your Honour.

60   HER HONOUR:  Any further orders required to be made?

61   MR WILSON:  No, Your Honour.

62   HER HONOUR:  Mr Tait?

63   MR TAIT:  Not from my end, Your Honour.

64   HER HONOUR:  All right.  Can I reiterate the thanks that I expressed to each of you, Mr Wilson and Mr Tait, for the considerable assistance you gave me in the course of the plea.

65   MR WILSON:  Thank you, Your Honour.

66   HER HONOUR:  I hope that it has been reflected in the way - not only the discussion on the day of the plea but in the way I have articulated my reasons for sentence.  If it has not, that is my inadequacy, not yours.

67   MR WILSON:  Thank you, Your Honour.  I will make a specific note as well as my instructors on the line just in terms of making sure that Corrections are aware of the specific remarks you have made about rehabilitative aspects and perhaps a copy of the psychologist's report as well which Your Honour has quoted from.

68   HER HONOUR:  Yes.  Thank you, Mr Wilson.  As a matter of course, Corrections seek from us the psych report.

69   MR WILSON:  Yes.

70   HER HONOUR:  So I will provide that and prison management or sentence management also seek a copy of the reasons for sentence and I will make sure that is provided.  We are told that Corrections take very seriously recommendations made by judges and I have every hope that that is so in Mr Sefer's case.

71   MR WILSON:  Thank you, Your Honour.

72   MR TAIT:  Thank you, Your Honour.  I must say that was particularly thorough from my perspective, Your Honour's reasons and recommendations for Corrections to assist with the rehabilitative process and - - -

73   HER HONOUR:  There is no point just being critical and judgmental and locking someone away, that is not what sentencing should be, it is also about looking after people who are just as much part of our community but in greater need of assistance than those of us who have been more privileged in our childhoods and upbringings.

74   I will arrange, Mr Tait, for the rest of us to step out so you can speak briefly to Mr Sefer on this link before you make your usual arrangements to speak to him privately.

75   MR TAIT:  I appreciate that, Your Honour.

76   HER HONOUR:  Thank you.  I will now adjourn.

77   MR WILSON:  May it please the court.

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