Director of Public Prosecutions v Setu
[2023] VCC 2434
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIFAE SETU |
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JUDGE: | HIS HONOUR JUDGE SEXTON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 20 November 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | DPP v Setu | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2434 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated Burglary; Contravening a Family Violence Intervention Order Intending to Cause Harm or Fear for Safety; Common Law Assault; Intentionally Destroying Property; Make Threat to Kill; Causing Injury Intentionally; Make Threat to Inflict Serious Injury; Aggravated Assault of a Female.
Legislation Cited: Sentencing Act 1991;
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Director of Public Prosecutions v Andrew Meyers 2014 VSCA 314; Zac Skeates (a Pseudonym) v The King 2023 VSCA 223; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 7 years 3 months with a non-parole period of 5 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Thyssen | Hilton-Wood Solicitors |
HIS HONOUR:
Introduction
1Nifae Setu, on 20 November 2023 you pleaded guilty before me to an indictment containing two charges of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment, three charges of contravening a Family Violence Intervention Order intending to cause harm or fear for safety which carries a maximum penalty of five years’ imprisonment, three charges of common law assault which carries a maximum penalty of five years’ imprisonment, one charge of intentionally destroying property which carries a maximum penalty of 10 years’ imprisonment, four charges of making threat to kill which carries a maximum penalty of 10 years’ imprisonment, one charge of causing injury intentionally which carries a maximum penalty of 10 years’ imprisonment, and one charge of make threat to inflict serious injury which carries a maximum penalty of five years’ imprisonment. You also pleaded guilty to a related Summary Charge of aggravated assault of a female which carries a maximum penalty of two years’ imprisonment.
2You also admitted your criminal record.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening dated 11 October 2023, Exhibit 1 at your plea hearing. Your counsel Mr Thyssen confirmed that this document contains the agreed factual basis of your offending, upon which you now fall to be sentenced.
4Your offending can now be briefly summarised.
5At the time of your offending, you lived at an address in San Mateo Avenue, Mildura and worked as a car detailer for a company located at the Mildura Airport. You were 51 years of age.
6Your victims in this matter are Monika Raymond[1] and Wes Horton[2]. You began a de facto relationship with Ms Raymond shortly after meeting her in Sydney in 2002. You have two children together, Sammy[3] now aged 18 and Abigail[4] now aged 14. In 2010 the family relocated to Mildura. There is a recorded history of family violence involving you and Ms Raymond, with police first intervening in July 2001 in Bankstown, New South Wales. Your counsel confirmed that the majority of your criminal offending relates to Ms Raymond.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
7On 8 February 2022, Ms Raymond separated from you for various reasons which included family violence. You moved out of the family home to the address in San Mateo Avenue, Mildura. Ms Raymond moved to another property in Mildura, where she met Mr Horton[5], who was then 79 years old. On 19 September 2022, some six months after your relationship with Ms Raymond ended, a Safe Contact Family Violence Interim Intervention Order was issued at the Mildura Magistrates’ Court, with Ms Raymond listed as an affected family member and you as the respondent.
[5] A pseudonym.
8In January 2023, Mr Horton and your ex-partner Ms Raymond commenced a relationship which you never accepted. You convinced yourself that Ms Raymond still wanted to maintain a relationship with you.
9Your offending took place on two dates, 17 May 2023 and 18 May 2023. Your offending occurred both at Ms Raymond’s home and your home.
10On the evening of Wednesday 17 May 2023, Ms Raymond and Mr Horton were at home in bed at Ms Raymond’s home in Mildura. At about 11.40pm, you left your children at your address and went to Ms Raymond’s address. When you knocked on the door, Ms Raymond told you to leave. The bedroom window was slightly ajar, and you could be heard yelling. You then broke the flyscreen and manoeuvred the window enough to allow space for you to climb through it.
11Through your plea of guilty to Charge 1 on the indictment, you have acknowledged that you entered Ms Raymond’s home as a trespasser, knowing or being reckless as to the presence of people inside, with an intention to assault, this conduct forming the basis of Charge 1 on the indictment, aggravated burglary. According to Ms Raymond, you sounded very angry, and called her a slut. Mr Horton retreated to his house, leaving some of his property including clothes, a wallet and keys and a mobile phone in the bedroom.
12Ms Raymond remained on the bed and you grabbed her around the throat with one hand and began to choke her, this conduct forming the basis of Charge 2 on the indictment, common law assault. Ms Raymond was unable to breath and believed that you were trying to kill her. She managed to push you away and get up and turn on the light.
13Meanwhile, you attempted to locate Mr Horton before returning a short time later with a pair of blue dressmaking scissors. You said to Ms Raymond “I will kill you and [Wes]”, this conduct forming the basis of Charge 3 on the indictment, make threat to kill.
14You then advanced towards Ms Raymond with the scissors in your hand and pushed them into her chest, piercing her skin. Your conduct in this regard forms the basis of Charge 4 on the indictment, causing injury intentionally. Ms Raymond pleaded with you to stop as she was very scared. As she attempted to push you away, you pulled Ms Raymond’s hair up and cut some off, your conduct in this regard forming the basis of the related Summary Charge of aggravated assault of a female. Photographs of the injury caused by the scissors and the removal of Ms Raymond’s hair were tendered at your plea hearing by the prosecution, marked exhibit 3.
15You then saw Mr Horton’s wallet on the bedroom table and his pants on the floor and you cut both of them up with the scissors, this conduct forming the basis of Charge 5 on the indictment, intentionally destroying property. You then took Mr Horton’s mobile phone and car keys before pulling Ms Raymond by the hair outside to the front of the house where your car was parked.
16As I stated earlier, an Interim Family Violence Intervention Order was then in place, prohibiting you from committing family violence. Your conduct in contravening this order by entering Ms Raymond’s residence as a trespasser while she was present inside, assaulting her and threatening to harm both her and Mr Horton forms the basis of Charge 6 on the indictment, contravention of an order intending to cause harm or fear for safety.
17You then got into your car with Ms Raymond and drove to your address. Once there Ms Raymond informed your children of what had occurred. You tried to hit Ms Raymond again, but your 18 year old son intervened. Whilst at the house, you again threatened to kill Ms Raymond and Mr Horton, your conduct in this regard forming the basis of Charge 7 on the indictment, make threat to kill.
18Furthermore, your conduct there in attempting to strike Ms Raymond and threatening to kill both Ms Raymond and Mr Horton forms the basis of Charge 8 on the indictment, contravention of an order intending to cause harm or fear for safety.
19Your son heard this threat being made, and told you not to go to Ms Raymond’s house. Your son then drove Ms Raymond back to her house, before returning to your house. You then vented your frustrations to your 18 year old son, reiterating that you planned on returning to Ms Raymond’s house, that you were not done, and that you were going to hurt them.
20Meanwhile, Ms Raymond went to Mr Horton’s home and told him what had occurred. Mr Horton indicated that you must have taken his mobile phone and keys. Ms Raymond walked to your house and retrieved Mr Horton’s keys and upon returning told Mr Horton that you had ruined his phone. Mr Horton then stayed with Ms Raymond for the evening.
21The following day, 18 May 2023, at about 8.30am, you knocked on Ms Raymond’s front door. Without opening the door, Ms Raymond asked you to leave. You then knocked on the front bedroom window and ripped the flyscreen off. You then returned to your car and retrieved a Makita circular saw and switched it on. You walked around the perimeter of the house kicking the fence and used the saw to cut outdoor furniture and the front bedroom window, whilst saying “where’s [Wes], I want to kill you and [Wes].” You were also heard to say “I know you’re in there with my wife. You better come up. I’ll cut your head off.” Your conduct in this regard forms the basis of Charge 9 on the indictment, make threat to inflict serious injury.
22Mr Horton and Ms Raymond retreated to the rear of the house. You were observed smashing through the front bedroom window and then climb through with the saw in your hand, saying “I will kill you both. Why are you doing this to the kids?” Your conduct in this regard, entering the property as a trespasser in the circumstances I have described, forms the basis of Charge 10 on the indictment, aggravated burglary, Charge 11, make threat to kill, and Charge 12, make threat to kill.
23Once inside the property, you followed Mr Horton and Ms Raymond into the laundry as they tried to escape. Mr Horton turned to face you, and you pushed him against the door and held the saw to his throat, your conduct in this regard forming the basis of Charge 13 on the indictment, common law assault.
24Whilst the saw was running, you said to Mr Horton “I will cut your head off.” Ms Raymond pushed you away, allowing Mr Horton to open the laundry door and flee to his address where he called the police. Meanwhile, you grabbed Ms Raymond by her clothes and held the saw up to her face and then above her head. She was crying and telling you to stop as she thought you were going to cut her or kill her with the saw. Your conduct in this regard forms the basis of Charge 14 on the indictment, common law assault.
25After realising that Mr Horton had called the police, you stopped and left the house. Your conduct in damaging the property of Ms Raymond with the saw, and entering the residence with the saw and assaulting both Ms Raymond and Mr Horton forms the basis of Charge 15 on the indictment, contravention of an order intending to cause harm or fear for safety.
26Later that morning, your son drove you to the police station and at approximately 11.14am you participated in a police interview. Whilst not denying what had happened, you essentially downplayed your level of culpability, saying that you acted out of frustration and anger. You referred to Ms Raymond not admitting all her wrongs, and referred to her infidelity. You also referred to Mr Horton having grabbed you around the throat first.
27You have remained in custody since your arrest, a period of 217 days as at today’s date.
Victim Impact
28A Victim Impact Statement from Mr Horton dated 14 August 2023 was tendered by the prosecution at your plea hearing and marked exhibit 2. At the request of Mr Horton, that statement was not read aloud in Court, though both Mr Horton and your ex-partner Ms Raymond were present at your plea hearing. Without now delving into the detail of Mr Horton’s statement, it is clear in a general sense that now at the age of 80, and with pre-existing health conditions, your conduct has caused him considerable fear and apprehension, he regularly relives the incident, and he has had to alter his behaviour in the interests of feeling safe. Ultimately, a Victim Impact Statement from your ex-partner Ms Raymond was not tendered by the prosecution. As obliquely referred to by your counsel, there appear to be complex dynamics existing between yourself and Ms Raymond. Both of your children, now aged 18 and 14, were also present in Court at your plea hearing. Your counsel indicated that Ms Raymond apparently does not want you to go to jail.
29Notwithstanding these complex dynamics and the apparent position of one of your victims, I proceed to sentence you on the basis that your egregious conduct on these two days has very much adversely affected your victims. The prosecution tendered two photographs showing the injury to the chest of Ms Raymond from you stabbing her with the scissors, and a photo of Ms Raymond’s head revealing the consequences of you cutting her hair with the scissors immediately afterwards. At the very least, your conduct has had physical consequences for Ms Raymond.
Nature and gravity of your offending and your level of culpability for it
30Over the course of two separate days, your serious criminality occurred at two locations, the home of Ms Raymond and your home, and involved three distinct incidents. During this period, as reflected by the charges on the indictment and the related summary offence, you committed 16 offences. The gravity of your conduct is of course reflected in the relevant statutory maximum penalties, with aggravated burglary in particular carrying a maximum penalty of 25 years’ imprisonment. These bare facts alone however, in my view, do not adequately reflect the particular gravity of your conduct.
31Overall, your criminality is emblematic of family violence. You were clearly unable to deal appropriately with the end of your relationship with Ms Raymond, and your perceptions as to the manner in which she had moved on. In what can only be described as a sustained and brutal attack, you engaged in a highly concerning series of events adversely impacting upon your ex-partner and Mr Horton.
32Concerningly, a Family Violence Intervention Order had been in place since 19 September 2022, an Order designed to protect Ms Raymond from you. All of the offending for which you now fall to be sentenced occurred in contravention of that Court Order. As sentencing Courts in this state have repeatedly emphasised, this type of family violence offending is extremely prevalent and utterly unacceptable. Such offending will attract serious consequences and even harsher penalties where it involves the breach of an Order which exists for the victim’s protection.[6]
[6]Director of Public Prosecutions v Andrew Meyers 2014 VSCA 314, 42.
33As the Court of Appeal stated in Meyers, violence involving former domestic partners is alarmingly widespread and extremely harmful, such that it can be described as an epidemic. “General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. 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.”[7] More recently, the Court of Appeal has emphasised the fundamental importance of the need for condign punishment to denounce and deter family violence because of its prevalence and the seriousness of its consequences.[8]
[7]Ibid 46.
[8]Zac Skeates (a Pseudonym) v The King 2023 VSCA, 56.
34The Court in Skeates referred to acts of violence in a domestic setting, and in particular by men towards women, as being utterly abhorrent and unacceptable. As the Court there stated “family violence is contemptable. It warrants both condemnation and appropriate punishment.”[9] The Court in Skeates also emphasised the fundamental importance of general deterrence, together with specific deterrence and protection of the community. The Court there stated that the “gravity of family violence offending will be aggravated if it breaches an extant FVIO….”[10] Such pronouncements inform the gravity of your particular conduct, committed as I have stated, in a family violence context.
[9]Ibid 59.
[10]Ibid 60.
35The Court in Meyers also referred to the relevant considerations when assessing the seriousness of any particular instance of aggravated burglary. Such considerations include an offenders intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened.[11]
[11]Paragraph 48
36The first of your three incidents took place on the evening of Wednesday 17 May 2023 at Ms Raymond’s address, and commenced with the commission by you of the offence of aggravated burglary. Through your plea of guilty, you have acknowledged responsibility for entering Ms Raymond’s property as a trespasser, with an intention to assault. Again, given the family violence context, this particular conduct must be seen as representing serious criminality indeed. You broke the flyscreen and manoeuvred the window enough to allow space for you to climb through the bedroom window where Ms Raymond and Mr Horton were then in bed, highlighting the gravity of this particular instance of aggravated burglary, invading the sanctity of your victim’s home whilst Ms Raymond and Mr Horton were in bed. You were clearly angry. You must have known that at least your ex-partner would then be present. Given the family violence history as indicated in your criminal history, and the existence of a Family Violence Intervention Order protecting Ms Raymond from you, it can reasonably be assumed that she would have been particularly frightened upon your entry into her property.
37Over the period of time that followed, you engaged in separate acts of criminality involving both your ex-partner and Mr Horton. Your choking of Ms Raymond which forms the basis of Charge 2 occurred whilst she was on her bed, aggravating in my view the seriousness of this particular conduct. Your threats to kill encompassed by Charge 3 occurred whilst you were holding a pair of blue dressmaking scissors, again emphasising the gravity of this conduct. Whilst holding the scissors in your hand you advanced towards your ex-partner and stabbed her in the chest, piercing her skin, Charge 4 on the indictment.
38At this point, Ms Raymond was pleading with you to stop as she was very scared. I regard this particular conduct as being extremely serious, penetrating the skin of your female victim in her home, with a bladed instrument. In response to her pleading with you to stop, you used the scissors to pull up some of her hair and cut some off, in my view an intensely degrading and personal act. You then proceeded to wantonly engage in acts of damage and destruction with regards to some of Mr Horton property that had been left behind, demonstrating in my view your disdain for Mr Horton.
39The second incident took place at your home, after you had pulled your ex-partner by the hair outside to the front of her house where your car was parked, and the two of you travelled to your home where your children were then located. There you engaged in other threatening behaviour with regards to both Ms Raymond and Mr Horton, forming the basis of Charge 7 on the indictment, all of which again occurred in contravention of a Family Violence Intervention Order. Your determination to continue with your serious criminality is reflected in your response to your 18 year old son Sammy when he tried to calm you down, with you replying that you were not done, and that you were going to hurt them.
40The third incident took place the following morning at approximately 8.30am when you returned to your ex-partner’s property. On this occasion you again committed the offence of aggravated burglary, although in my view this represents a more serious example of this particular offence. On this occasion you retrieved a circular saw from your vehicle, switched it on, and ultimately smashed your way through the front bedroom window before climbing through with the saw in your hand. The gravity of this particular instance of aggravated burglary is elevated in my view by virtue of you entering with an objectively dangerous item, and by virtue of the fact that you had returned to Ms Raymond’s property after engaging in serious criminality the night before.
41Again, upon gaining entry to the property you engaged in distinct and serious criminal offences whilst inside the property, and whilst in possession of the circular saw which had been switched on. In particular, your actions in pursuing Mr Horton and Ms Raymond into the laundry as they tried to escape, pushing Mr Horton against the door and holding the saw to his throat and soon after grabbing Ms Raymond by the clothes and holding the saw up to her face and above her head, all whilst you made extremely threatening remarks, constitutes self-evidently serious criminality on your part. Your victims must have been terrified. Again, this all occurred in contravention of a Family Violence Intervention Order, elevating the gravity of your misconduct.
42In terms of your culpability, your counsel did not submit that your moral culpability or level of responsibility for the offending was in any way reduced by virtue of the Verdins’ mental impairment principles.[12] Likewise, there is nothing in the psychological assessment report of Gina Cidoni dated 3 November 2023, exhibit C at your plea hearing, that would warrant any meaningful reduction in your moral culpability. Indeed, according to Ms Cidoni, you have described your actions as occurring following the belief or discovery of your wife with an older man who lived across the road, and you described feeling extreme anger and admitted that you were not thinking clearly at the time. In those circumstances, particularly given your family violence history involving Ms Raymond, I find your level of culpability for the offending to be high. Your decision to return to your ex-partner’s property on 18 May, where you engaged in even more serious conduct than the evening prior, is particularly concerning in terms of your culpability, in my view.
[12] The Queen v Verdins (2007) 16 VR 269.
Personal circumstances
43You are now aged 52. You were born and raised in Samoa. Your mother is still alive and resides in New Zealand. Your father died in 2011. You are the third youngest of 11 children, and were educated in Samoa and New Zealand up to the Year 11 level.
44After some time working in New Zealand, you emigrated to Australia in 1994, when you were in your early twenties. In Australia you have worked in various capacities, in factories and in warehousing and logistics, both in Sydney and then significantly in Melbourne. More recently, you have worked at a car and truck rental company for some eight months, and at the time of your arrest you were working as a car detailer.
45You do not appear to have a problematic history with regards to drugs or alcohol.
46In terms of your physical health, you have previously been hospitalised with regards to a heart condition for which you have undergone operations in 2002 and 2007, with a third procedure with regards to faulty heart valves being scheduled but deferred due to your current incarceration. You are apparently in receipt of various medications with regards to your physical ailments, relating to your heart, high blood pressure, gout, depression and high cholesterol. Your gout was apparently diagnosed recently, which primarily affects your feet. You have reported that your condition has worsened in the custodial setting, which you have attributed to the food provided. You were apparently diagnosed with depression and anxiety by your general practitioner about three years ago, and prescribed an anti-depressant medication, Sertraline, which you apparently continue to take.
47Prior to your relationship with Ms Raymond, you have been in two significant relationships. Whilst in New Zealand at the age of 21, you formed a relationship with a woman and together you had a son born in February 1991. You have reported that this relationship broke down in the context of your young age and infidelity, and that the separation was difficult.[13] A few years later at the age of 23, you formed a relationship with another woman and together you came to Melbourne. You have a son from this relationship, born in July 1995. This relationship ended in the context of your suspicions of your partner’s infidelity and you have reported that this separation was also conflictual.[14]
[13]Paragraph 23, psychological assessment report of Gina Cidoni dated 3 November 2023, exhibit C
[14]Paragraph 24 of the report of Gina Cidoni
48You formed a relationship with Ms Raymond when you were aged 28. As I have indicated, together you have a son born in 2005 and a daughter born in 2009. For the purposes of your plea hearing, you were assessed by psychologist, Gina Cidoni, with her findings set out in a psychological assessment report dated 3 November 2023, exhibit C at your plea hearing. In your assessment with Ms Cidoni, you attributed the deterioration in your relationship with Ms Raymond to her being insecure and possessive, and accusing you of cheating, and referred to Ms Raymond prohibiting you from seeing your children from your past relationships, with the result that you have not spoken to them for more than 10 years. You also referred to Ms Raymond ending the relationship in 2021 during the Covid-19 pandemic after receiving a payout, following which time she repartnered fairly quickly. You reported to Ms Cidoni that you struggled to accept this. As I indicated earlier, when interviewed by police, you downplayed your criminality in relation to the current offending, and in my view there is a degree to which you deflected responsibility to your victims. In that context, I am somewhat sceptical with regards to your self-report regarding the circumstances in which your relationship with Ms Raymond ended.
49Moreover, your counsel confirmed that the majority of your criminal history relates to your conduct with regards to Ms Raymond. In particular, as confirmed by your counsel, whilst your prior convictions with regards to assault from 2001 apparently relate to a former partner, the prior convictions for assault occasioning actual bodily harm and contravening an Apprehended Domestic Violence Order from 2003 relate to Ms Raymond. Your more recent prior convictions from 2021 and 2022 also involving violence and breaching a Family Violence Intervention Order, relate to Ms Raymond. Clearly, you have an established history of family violence against Ms Raymond, and breaching Court Orders designed to protect Ms Raymond from you. Your criminal history elevates your moral culpability for your current offending, and increases the need for any sentence I impose to reflect the sentencing purpose of specific deterrence. Clearly, previous penalties have not deterred you from again engaging in violent behaviour towards your previous partner.
50You reported to Ms Cidoni that your offending occurred in the context of your discovery of your wife with an older man who lived across the road, and that you were feeling extreme anger and not thinking clearly at the time. Though you appeared to acknowledge that your actions were wrong, you insisted that you did not mean what you said and that your reaction was a result of the overwhelming emotions you were experiencing.[15] You referred to your arrest and incarceration as a wake-up call and that you have been doing everything since to take responsibility for your actions.[16] Ms Cidoni attributed your offending to your emotional state at the time, brought about through the deterioration of your relationship with Ms Raymond and its subsequent breakdown, and refers to your significant emotional distress being exacerbated by your heightened sensitivity to stressors and emotional instability, as noted in your personality traits. Ms Cidoni also refers to your potential difficulties in understanding and reasoning through verbal information, as indicated by psychological testing, as potentially playing a role in the way you interpreted and processed the situation, influencing your emotional response and decision making process.[17] Whilst that may be the case, this in no way excuses, nor in my view mitigates, your offending behaviour with regards to your victims.
[15]Paragraph 13 of the report of Gina Cidoni
[16]Paragraph 14 of the report of Gina Cidoni
[17]Paragraph 73 of the report of Gina Cidoni
51Finally with regards to Ms Cidoni, she assesses your risk of reoffending in a family violence context as being moderate, and makes various recommendations to reduce that risk, which include ongoing counselling and therapy to address emotional instability and impulsivity, participation in anger management programs, support for cognitive functioning, engagement in community support programs and the importance of regular monitoring. Ms Cidoni also refers to the difficulties of the prison environment given your psychological makeup and separation from your children.[18]
[18]Paragraphs 76 and 77 of the report of Gina Cidoni
Sentencing factors
52The Sentencing Act requires me to have regard to various matters in formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the nature and gravity of your offending and your level of culpability for it, and your previous character.
53You first indicated your intention to plead guilty at the first committal mention on 16 August 2023 where the matter proceeded by way of a straight hand-up brief procedure. Your early plea of guilty in relation to this matter warrants a significant sentencing discount, enhanced by virtue of the fact that it was entered in the context of the Covid‑19 pandemic and its now well-documented and unprecedented delays with regards to the finalisation of cases in this Court. The utilitarian value of your plea of guilty in these circumstances warrants an enhanced sentencing discount.[19] Particularly given the nature of the charges, your plea of guilty has avoided the need for your victims to give evidence, highlighting the value of your plea of guilty. I also accept that your plea reflects your acceptance of wrongdoing and willingness to facilitate the course of justice.
[19]Worboyes v The Queen [2021] VSCA 169
54According to your counsel in written submissions,[20] in hindsight you deeply regret your actions and the injuries and trauma occasioned. I must say, having closely reviewed the psychological assessment report from Ms Cidoni, there are only muted references which could be described as remorse or regret on your part for your serious offending. According to Ms Cidoni “he seemed to acknowledge his actions were wrong.” According to Ms Cidoni, since your incarceration you have done everything you can to take responsibility for your actions, and you apparently hate yourself for what you have done and do not want this life for yourself or your children. Absent from these references are any expressions of remorse on your part, specifically with regards to Ms Raymond or Mr Horton. At your plea hearing before me, you read out a letter to the Court which was tendered and marked exhibit D. In that letter, you do indicate that you would like to apologise to your partner and “the other party.” You refer to being sorry if you have caused any fear, and “that every empty word that came out of my mouth was out of frustration and being overwhelmed by the whole situation, and nothing more than that.” The sentiments that follow in your letter are focussed, in my view, on the impacts of your offending on yourself and your children. Whilst in my view your letter is significantly self-focussed, I accept that it represents a conscientious effort on your part to apologise for your actions. Given this, I am prepared to make a mitigatory allowance due to your remorse, though I have concluded that the situation is rather nuanced, for the reasons I have articulated.
[20]Exhibit A
55You have been in custody now for in excess of 200 days, and I accept that this has no doubt been a difficult time for you given your separation from your two children. You have, it seems, used your time productively by undertaking courses and I was informed that you have occupied the position of head billet. Clearly though, you have a number of physical ailments. The letter from your longstanding doctor, Dr Sanatipour, dated 9 September 2023, tendered at your plea hearing and marked exhibit B, refers to you suffering from rheumatoid heart disease which has led to valvular heart disease. There is reference to aortic valve replacement in 2002 and 2007, together with you suffering from pulmonary valve stenosis. Dr Sanatipour refers to you suffering from gout and in 2020 being diagnosed with major depression. You use blood thinners which need very close monitoring with regular blood tests. You are on various medications, and you are apparently on a waiting list for an ear operation which is complicated by your cardiovascular disease. Whilst not specifically relied upon by your counsel, given your physical ailments and emotional instability as referenced by Ms Cidoni, I am prepared to make a further mitigatory allowance due to the hardship in the custodial environment given that you are not in good health, pursuant to Verdins principle 5.
56Your counsel submitted that you have enhanced prospects of rehabilitation due to your ongoing family supports, and your previous demonstration of an ability to undergo and complete a Community Correction Order. According to your counsel, you are “redeemable”. On a backdrop of concerning family violence and breaching Court Orders, your current offending represents a considerable escalation with regard to such behaviour. In all the circumstances, I am not entirely convinced that you are truly insightful with regards to your offending. However, you have acknowledged responsibility as evidenced through your early plea of guilty, and there is a degree of remorse on your part. In my view, your prospects of rehabilitation are heavily contingent upon your willingness to engage in specialist interventions with regards to your problematic behaviour surrounding intimate partners. Whilst your rehabilitative prospects could be described as reasonable, they are in my view necessarily speculative for the reasons I have articulated.
57Any penalty I impose must in my view serve to denounce your very serious criminality, and send a clear message to the broader community that such serious family violence is completely unacceptable and will be met with significant punishment. Given your criminal history and the nature of your offences, community protection also looms large as a sentencing purpose in your case. It is also important in my view to structure a sentence that appropriately seeks to facilitate your rehabilitation, in the interests of community protection. As I have stated, your offending extended over a two-day period, involved three incidents, and two separate locations. There is a need in my view to reflect the distinct and serious criminality encompassed by the charges to which you have pleaded guilty, through a measure of cumulation, though I accept your counsel’s submissions that there are degrees of overlap between the charges, such that cumulation should be moderated, and of course adjusted by virtue of the overarching principle of totality.
58Nevertheless, in my view, consistent with the parsimony principle, the only appropriate sentence in your case is a sentence of imprisonment of some length, ameliorated somewhat through a parole eligibility component.
Sentence to be imposed
59On Charge 1 on the indictment, aggravated burglary, you are convicted and sentenced to three years’ imprisonment.
On Charge 2 on the indictment, common law assault, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 3 on the indictment, threat to kill, you are convicted and sentenced to 14 months’ imprisonment.
On Charge 4 on the indictment, intentionally causing injury, you are convicted and sentenced to two years’ imprisonment.
On Charge 5 on the indictment, criminal damage, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 6 on the indictment, contravention of an order intending to cause harm or fear for safety, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 7 on the indictment, make threat to kill, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 8 on the indictment, contravention of an order intending to cause harm or fear for safety, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 9 on the indictment, make threat to inflict serious injury, you are convicted and sentenced to 9 months’ imprisonment.
On Charge 10 on the indictment, aggravated burglary, you are convicted and sentenced to four years’ imprisonment. This is the base sentence.
On Charge 11 on the indictment, make threat to kill, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 12 on the indictment, make threat to kill, you are convicted and sentenced to 12 months’ imprisonment.
On Charge 13 on the indictment, common law assault, you are convicted and sentenced to 15 months’ imprisonment.
On Charge 14 on the indictment, common law assault, you are convicted and sentenced to 18 months’ imprisonment.
On Charge 15 on the indictment, contravention of an order intending to cause harm or fear for safety, you are convicted and sentenced to 12 months’ imprisonment.
In relation to the related Summary Offence of aggravated assault of a female, you are convicted and sentenced to six months’ imprisonment.
60I order that 10 months on Charge 1, three months on Charge 2, four months on Charge 3, five months on Charge 4, three months on Charge 7, two months on Charge 11, two months on Charge 12, three months on Charge 13, five months on Charge 14, and two months on the related Summary Offence Charge, be served cumulatively upon each other, and upon the sentence imposed with regards to Charge 10 on the indictment, making a total effective sentence of seven years’ and three months imprisonment.
61I order that you serve a period of five years’ and three months imprisonment before becoming eligible for parole.
62Pursuant to s18(4) of the Sentencing Act, I declare a period of 217 days pre-sentence detention, and I order that this period be administratively deducted from your sentence.
63Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty but been found guilty of these offences, I would have imposed a total effective sentence of nine years’ and six months imprisonment with a non-parole period of seven years.
64Finally, I make the Disposal Order with regards to the blue dressmaking scissors and the Makita circular saw, this application not being opposed by you.
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