Director of Public Prosecutions v Simpkins
[2022] VCC 304
•17 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01084
Indictment No. L11014360
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK SIMPKINS |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2021, 16 February 2022 | |
DATE OF SENTENCE: | 17 March 2022 | |
CASE MAY BE CITED AS: | DPP v Simpkins | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 304 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Aggravated Burglary – Lower end of mid-range offending – Breaking in to former sexual partner’s home in early daylight hours – Early plea of guilty – Youthful offender – No prior criminal history – Good character – Severely intoxicated at time of offending– Borderline personality disorder – Dissociating at time of offending – Verdins principles 1, 3, 4 and 5 engaged to limited extent – Excellent prospects for rehabilitation – Delay – COVID-19 factors
Legislation Cited:
Cases Cited:
Sentence: Five year Community Correction Order with 600 hours unpaid community work and program and treatment conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Martin Mr John E Goetz | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Mortley 9 November 2021 16 February 2022 | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1 Patrick Simpkins, you have pleaded guilty to one charge of aggravated burglary.[1] The maximum penalty for aggravated burglary is 25 years’ imprisonment.
[1] Contrary to s 77 of the Crimes Act 1958.
The Facts
2 The prosecution filed a summary of prosecution opening for plea dated 12 October 2021,[2] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[2] Exhibit (‘Ex’) P1.
3 The victim, whom I will refer to in these sentencing remarks as Anne Stevenson,[3] was 21 years of age at the time of the offending. You were 23 years of age at that time. You and Ms Stevenson were in a casual sexual relationship between 4 February 2020 and 7 March 2020.
[3] This is a pseudonym to protect the identity of the victim.
4 On the night of 14 March 2020, you attended a party at your brother’s home in Ashwood.
5 At 6:43 am on 15 March 2020, you attended Electra Avenue, Ashwood. You walked along the footpath. As you were walking past an address in Electra Avenue, you began taking off your shirt. You were wearing faded grey jeans and black shoes with white trim at the bottom. This was captured on CCTV footage from the Electra Avenue property.
6 At 7:40 am, you attended at an address in Electra Avenue, being the residence of Ms Stevenson. You were familiar with these premises having attended there on numerous previous occasions.
7 You removed the flyscreen from the bathroom window, ripping it in the process. You thereby gained access to the property by climbing through the window. You then went to Ms Stevenson’s bedroom where she was asleep in her bed.
8 You opened Ms Stevenson’s wardrobe and took out a number of items, including a rope, a riding crop, a number of her personal items of a sexual nature, and lingerie. You deliberately damaged these items.
9 Ms Stevenson awoke and observed you crouched at the foot of her bed with the rope doubled over and wearing a red bandana which covered the bottom half of your face. She cried out, ‘What the fuck?’ three times. You started to walk towards her while looking at her and holding the rope in your hands. You were shirtless, had your arms out, and were walking on your tiptoes. Ms Stevenson believed you were going to pounce on her and she was in fear that she was going to be attacked or sexually assaulted. Ms Stevenson shouted at you to get out. You remained at the head of her bed staring at her. She believed you were ‘getting ready to pounce’. She again told you to get out. You then stumbled out of the bedroom and left the house through the front door.
10 At 7:45 am, you were captured on CCTV footage shirtless and running away from Ms Stevenson’s home. Accordingly, you were in Ms Stevenson’s home for about five minutes.
11 When Ms Stevenson called 000, she was obviously fearful and distressed.
12 She did not give you permission to enter her property on 15 March 2020.
13 On 2 April 2020, you attended the Box Hill police station on request. You were arrested and interviewed by police. The interview was suspended while police executed a search warrant at your residence in Mount Evelyn. During the search, police seized shoes and jeans matching those worn by you and shown in the CCTV footage. You also gave police permission to go through your messages to Ms Stevenson on your phone.
14 You made a predominantly ‘no comment’ record of interview when it recommenced some hours later. You did answer three questions relating to the nature of your relationship with Ms Stevenson and accepted you knew where she lived and had been there ‘a handful of times’. You recalled a conversation you had with Ms Stevenson in relation to boundaries set in your relationship and indicated you had accepted and agreed with her regarding those matters.
15 You were released pending summons and charged on 23 April 2020.
Victim Impact
16 A victim impact statement (‘VIS’) by Ms Stevenson was read aloud in court by the prosecutor at the plea hearing. An addition to the VIS was filed on 14 February 2022. Your counsel accepted the admissibility of the contents of the VIS including the additions. The VIS speaks eloquently of the harm your conduct has inflicted on Ms Stevenson.
17 She stated she could not believe what had happened. She felt the total loss of trust, betrayal and that you had taken things she used to enjoy from her. During the three weeks since your offending and until you were arrested, Ms Stevenson was ‘on high alert 24/7’. She was exhausted and barely functioning. She was terrified and felt vulnerable. She could not be in her bedroom. She barricaded her door every night and had to have her father’s dog stay with her as a guard dog.
18 Ms Stevenson said she felt violated that you had gone through her belongings, pulling things out of her bags. Her belongings had been rifled through and left displayed and broken, for her to deal with. Because of your offending, the police went through her personal items which was mortifying for her. She felt embarrassed even though it was not her fault.
19 Because of your offending, Ms Stevenson had to move house. She would check under her bed multiple times every night because she was scared you would be hiding under her bed. She had to make sure the house was completely locked up. She would check it many times during the day and night. She checked her bedroom door was locked and checked behind her curtains and wardrobe because she would be afraid you could have been hiding there.
20 Ms Stevenson said her sleep is very disrupted because of your offending conduct. The smallest noises would instantly wake her up and she would have a panic attack. In the middle of the night her house mate would have to go outside and check there was no one there. Ms Stevenson felt in danger at all times.
21 She also had numerous panic attacks at work, especially during the period when mask wearing rules came into force. Anytime someone came to the store where she works wearing a bandana as a mask, especially a red one, she would ‘shut down’ and have to leave immediately.
22 Ms Stevenson had to take a lot of time off work to avoid these triggers, especially around court dates and when she was undergoing therapy and trauma counselling. She estimated losing approximately $22,000 in salary and she had to use up her savings to pay rent and other household expenses.
23 Your crime has made it hard for Ms Stevenson to trust people. She could not share a bed with other partners. There have been times where her partner has slept in a different room because she was feeling too ‘triggered’ to share her sleeping space.
24 Your crime has affected her friendships. She no longer wants to socialise or go to parties and could not feel comfortable anywhere she went. Your crime has also impacted on many things Ms Stevenson used to enjoy. Even now she cannot go for walks where there are people because she becomes scared someone might be following her to attack her.
25 Ms Stevenson’s pre-existing eating disorder has grown ‘critically worse’ since your offending conduct and she has lost about 20kg in a few months. She was nearly hospitalised a couple of times because this affected her blood pressure. She lost a lot of hair because of the eating disorder and the stress, which was incredibly upsetting for her.
26 Ms Stevenson withdrew from university when she moved house as a result of your offence. She had completed two years of a double degree in Criminology and Psychological Science and had only one year left to complete. She was excited about studying. Since your offending occurred, she could not apply herself to her study and found the content of her course incredibly ‘triggering’. She has not been able to return to study at this time. She feels like a failure due to being unable to complete her course after experiencing this incredibly traumatic event.
27 On behalf of the Victorian community, I denounce your offending conduct, and I take into consideration the impact of your crime on Ms Stevenson in sentencing you. Clearly, your offending has had a profoundly traumatic and lasting effect on Ms Stevenson and a devasting financial and personal impact on her.
Offence Seriousness
28 Aggravated burglary is a very serious criminal offence, carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence.
29 I do not accept your counsel’s submission this offending falls ‘at the lower-end of the scale for an offence of aggravated burglary’, even though the prosecution agrees with this characterisation of the offending.
30 I consider this offence falls towards the lower end of mid-range offending for the offences of aggravated burglary. You entered a private residence at a relatively early hour of the morning through a window, damaging a flyscreen in the process. You were shirtless and wearing a red bandana which was partially covering your face and was presumably intended by you as a disguise. You expected a solitary women, whom you knew as a former sexual partner, to be asleep in her bed, where she had the right to feel safe.
31 Once you gained entry to her home, you proceeded to her bedroom with the admitted intent of assaulting her. This intent is put on the agreed basis that you intended to put Ms Stevenson in fear of immediate and unlawful violence. I note the Crown’s concession Ms Stevenson knew it was you who had entered her bedroom. Nonetheless, it was a terrifying experience for her.
32 I accept, as the Crown fairly concedes, many of the indicia of a serious example of the offence of aggravated burglary are not present in your case. There is no evidence of you seeking vengeance, breaching intervention orders or an anger-fuelled assault which are frequently factors seen in cases of intimate relationship aggravated burglary. Similarly, there was no physical violence, the presence of weapons or the involvement of other persons in this case, as is often seen in confrontational aggravated burglaries.[4]
[4] See eg Hogarth v The Queen (2012) 37 VR 658; DPP v Anderson [2014] VSCA 255; DPP v Meyers [2014] VSCA 314 [48].
33 The circumstances regarding what you did once you entered Ms Stevenson’s bedroom, as summarised above at paragraphs 8 and 9, could have been charged as separate offences of damaging property and common law assault. I accept the Crown’s submissions[5] that these uncharged acts are considerably less serious than the offence of aggravated burglary and they are ‘substantially linked to the charged offence in that they inform [your] intent upon entry to the property as a trespasser, the severity of the trespass [which was ongoing],[6] and the impact of the charged offence on’ Ms Stevenson.[7]
[5] Further Prosecution Submissions on Sentence, dated 30 November 2021 (Ex P5) [3]; Further Written Submissions on Behalf of Defence and Response to Further Crown Submissions, dated 13 January 2022 (Ex D3) [3].
[6] See DPP v Barnes [2015] VSCA 293 [45] (‘Barnes’); Salapura v The Queen [2018] VSCA 255 [57] (‘Salapura’).
[7] See eg R v Ashdown [2003] VSCA 216 [11]–[13].
34 Accordingly, I consider it is not unfair that these circumstances are taken into account as part of the context of the offence charged.[8] However, you are not to be punished for these uncharged acts and I cannot treat them as aggravating features of the offence charged.[9]
[8] Barnes [45]; Salapura [57].
[9] Salapura [58]; R v De Simoni (1981) 147 CLR 383, 389; R v Newman and Turnbull [1997] 1 VR 146, 150; Bava v The Queen [2021] VSCA 34. Cf Elsayed v The Queen [2019] VSCA 113 [63]; R v Nobile [2006] VSCA 211 [8]; R v Henderson-Drife [2007] VSCA 211.
35 While it is a question of fact, degree and fairness to be assessed in each case, on balance I do not consider it is appropriate in this case to give significant weight to your actions after entry into Ms Stevenson’s bedroom, other than the extent to which those actions have adversely impacted on her emotional and physical well-being. In this regard, I note no exception was taken to the contents of her VIS on the basis these aspects of it were irrelevant. Moreover, your counsel fairly and correctly conceded I am entitled to have regard to the fact Ms Stevenson awoke to find you crouched at the foot of her bed and that her personal and sensitive items of property had been accessed and damaged by you. He further correctly conceded your conduct contributed to the sense of outrage suffered by Ms Stevenson at this gross invasion of her privacy.[10] In my opinion, it also seriously adversely affected Ms Stevenson’s sense of safety in her own home.
[10] R v Ashdown [2003] VSCA 216 [11]–[13].
36 Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case.
Personal Circumstances
37 You are now 25 years old and you were aged 23 years at the time of the offending. You grew up in Wonga Park and lived in the eastern suburbs of Victoria most of your life. You have one older brother, one older sister and one younger sister. You told Dr Simon Vincenzi, who interviewed you on 18 January 2022 and authored a court-ordered psychological report dated 11 February 2022,[11] you have an amicable relationship with your siblings and continue to see one of your sisters often, as she lives near you. All your family members are aware of your offending.
[11] Ex C2.
38 Your parents separated when you were aged six. You periodically moved between your mother’s and father’s houses. You witnessed arguing, tears and tension in the family. You told Dr Vincenzi you were a relatively unhappy child but you appeared to have little insight into your emotional state at the time. You told Dr Vincenzi your parents continued arguing even after their separation. You said you experienced some anxiety in response to the tension. You told Dr Vincenzi you never received a ‘normal parenting structure’ and felt like an outcast and different from your friends. You described your father as traditionally an intolerant person. Your counsel told the Court as a result of the tension and your parent’s separation, you had a decent but distant relationship with your parents.
39 You attended Aquinas College in Ringwood. You told Dr Vincenzi you had no problems making friends at school but you got into more fights than the average student. You received average grades. You said you were a more ‘hands-on’ person. While you were passing your subjects, you were truanting and getting into fights. Your motivation waned once you began smoking cannabis more frequently during your adolescence and you left school before completing Year 11 because of ‘antisocial behaviour’.
40 After leaving school, you worked on a part-time basis at Woolworths before being terminated for failing to attend, which you attributed to your cannabis use. You were unemployed and received Centrelink payments for two years between 2013 and 2015.
41 In 2015, you were provided with full-time work through Centrelink employment agency as a labourer for concreting businesses. This lasted for two months until you stopped attending.
42 You then worked as an apprentice carpenter in 2016 for five years. You obtained an apprenticeship in carpentry at Total Trade Constructions. You completed the apprenticeship. You worked in this role until September 2021 when you were terminated because your legal issues were affecting your mood and the quality of your work.
43 You told Ms Hornidge, who authored the court-ordered Extended Pre-Sentence Assessment – Outcome Report dated 14 December 2021, you began working as a labouring subcontractor in around mid-November 2021. You told her the work has not been going well as there was a steep learning curve and you had made a lot of mistakes whilst learning. You also said work was sporadic. Although you were working most days, the hours and amount of work available was very variable.
44 You commenced counselling for anxiety and depression through your school and externally when you were aged 14. You began drinking alcohol at age 15. You began smoking cannabis at age 16. In 2011, you saw a general practitioner for anxiety and depression and you were prescribed Fluoxetine (Prozac). You took this medication for three years and ceased because of its negative side effects. You have not been prescribed any medication since that time.
45 Between 2013 and 2016, you were hospitalised on seven occasions for suicide attempts and substance abuse.
46 You began abusing cannabis and alcohol from the age of 16 years. You smoked 7 grams of cannabis daily at one stage. You stopped smoking cannabis when you were around 17 or 18 years old, at which time your alcohol use increased. When you were around 19 years of age, your alcohol use worsened again and you were drinking a bottle of vodka or whisky per day. Your apprenticeship initially moderated your alcohol consumption. However, in 2020, owing to a lack of training, dislike of job sites and disagreements with work colleagues, you continued working but your drinking increased to new high levels. You estimated that you were consuming one and a half bottles of vodka per day. You have not used alcohol since April 2020.
47 You moved from your mother’s home to your father’s premises at some point around 2015, where you currently reside.
48 You told Dr Vincenzi you had two serious intimate relationships not counting the relationship with Ms Stevenson. The first relationship was when you were between the ages of 15 and 18 years. You told Dr Vincenzi your connection with you partner weakened near the end of the relationship and you decided to end it. Your next relationship occurred between the ages of 20 and 23 years. It mutually ended about two months before you met Ms Stevenson. You described the relationship as ‘toxic’, saying you consumed too much alcohol and did not spend enough time with that partner during the two years you lived together. Your former partner would often tell you that you would ignore relationship issues and not talk about them.
49 You met Ms Stevenson on the dating app ‘Tinder’ in early 2020. You told Dr Vincenzi you had experimented with bondage, discipline, sadism and masochism (BDSM) in relationships prior to meeting Ms Stevenson. You did not consider yourself to be part of that community, however, you were experienced enough that it was something you and she had discussed via Tinder prior to meeting her in person. You told Dr Vincenzi that Ms Stevenson was more experienced than you in this domain. When role playing, you played the role of the more dominant and aggressive person. You said your relationship with Ms Stevenson was unconventional, in that it was largely sexual and BDSM-focused.
50 You told Dr Vincenzi there was no expectation of exclusivity in your relationship with Ms Stevenson. However, your different attitudes towards ‘swingers’ parties, in which attendees openly have consensual sex with multiple other individuals, led to an argument between you and Ms Stevenson and the relationship ended.
Mental Health
51 You have had numerous hospitalisations for mental health issues, beginning when you were 17 years of age. A report from Eastern Health, dated 23 September 2025,[12] indicates eight admissions between 6 November 2013 and 17 June 2015. You told Dr Vincenzi only one of those admissions was involuntary.
[12] Ex D2.
52 You described a history of drug-induced psychosis, confused thoughts, and mild auditory hallucinations (mainly hearing your name). Dr Vincenzi opined these episodes appear to be related to your borderline personality disorder (BPD) diagnosis.
53 You reported to Dr Vincenzi that some of the admissions related to suicidal ideation. You attempted suicide when you were 18 years of age, by overdosing on multiple assorted medications you found around your house. Your mother found you when you were losing consciousness after she returned home from work. You told Dr Vincenzi that most of your suicidal ideation was triggered by relationship problems. The attempt at 18 years of age related to a relationship you started with a girl you had met while in hospital. You said you were both severely dependent on each other and her mother disapproved of your relationship. This led you to attempt suicide.
54 You were diagnosed with BPD while hospitalised. BPD is a disorder that impacts a person’s ability to regulate their emotions (among other traits) and can often lead to dissociative symptoms. You described to Dr Vincenzi a history of dissociation, namely depersonalisation, the feeling that one is separate from one’s body. You described occasionally feeling like you are floating above your body and not in control of it. Less frequently, you have experienced difficulty speaking during these times and, on one occasion, you reported being unable to move in your seat for hours.
55 You reported you dissociate less frequently in recent times. You also described an intense quality to your emotions, both positive and negative, and that you engage in reckless behaviour, such as substance misuse, speeding, and inappropriate spending.
56 You appear to lack a strong sense of identity; something also commonly seen among people with BPD. You described being unsure what you are ‘supposed to be doing’ with your life, and you often stare into mirrors without recognising your reflection. You described a history of self-harm by causing lacerations to many parts of your body from the age of 11 or 12 years until the age of 18 years.
57 You also reported to Dr Vincenzi a history of depression and anxiety since you were 11 or 12 years of age. You have poor insight into the cause of this anxiety and depression. You described experiencing low mood and low self-worth since this time.
58 You have never received the first line treatment for BPD, being dialectical behavioural therapy. You are currently not receiving any treatment; however, you have received individual counselling and medication with some success in the past.
59 Dr Vincenzi opined the dissociative symptoms you exhibited appear to have been a contributing factor towards your unusual behaviour on the night of the offence. While dissociation alone does not completely account for your offending behaviour, when viewed along with your intoxication at the time, Dr Vincenzi opines you were attempting to withdraw from your emotional distress. People with BPD often feel overwhelmed by their emotions and unable to regulate them on their own. Dr Vincenzi opined, in this highly detached state you likely did not understand the impact of your behaviour to the same extent you would have had you not been experiencing dissociation.
60 Dr Vincenzi opines, if you experience emotional distress while in custody, it may be more severe and difficult to manage for you than for an individual without BPD owing to the emotional dysregulation problems associated with BPD.
61 Dr Vincenzi administered the Level of Service/Risk, Need, Responsivity (LS-RNR) tool in conducting your risk assessment. Your score in seven categories placed you in the low risk/needs category. Your profile indicates moderate elevations within the areas of leisure/recreation and companions. These areas appear to be elevated because you do not currently have social supports and do not engage in social or organised activities.
62 While you fall within the low risk category for future offending, and your cessation of alcohol is a protective factor, if you can continue to refrain from using alcohol, Dr Vincenzi opines it appears unlikely you would engage in a similar offence again. Your primary areas of concern, according to the risk assessment, are a lack of social supports and a lack of social or organised activities. Dr Vincenzi did not recommend offence-specific treatment. However, he recommended you receive group-based dialectical behavioural therapy or another evidence-based therapy to target your BPD traits and especially your dissociative symptoms. You may be able to receive this form of treatment through Spectrum or the Alfred Hospital.
63 Dr Vincenzi’s report has posited a causal nexus between your borderline personality disorder and dissociative state and this offending, albeit your extreme state of intoxication at the time also played a major role. I accept Verdins principle 1 is engaged in your case to reduce your moral culpability to some extent and to cause me to moderate the weight I would otherwise have given the principle of denunciation.[13] I also accept Verdins principles 3, 4 and 5 are engaged to a small extent in your case.[14]
[13] R v Verdins (2007) 16 VR 269, 276 [32.1] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’); Brown v The Queen (2020) 62 VR 491.
[14] Verdins 276 [32].
Mitigating Circumstances
64 You pleaded guilty to this offence at a relatively early stage in the proceedings, on the day of a contested committal hearing. I accept your plea has significant utilitarian benefit, particularly in the COVID-19 environment. The plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice. It has also meant your victim has not been put through the trauma of giving evidence at a committal hearing or a trial, which is particularly significant in this case.
65 While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct and victim empathy, beyond what is evident from the plea itself.[15]
[15] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
66 You have no prior criminal history, no subsequent offences and no matters outstanding. I have had regard to the character reference from Mr Nathan Payne, your former employer, who speaks very highly of your work ethic and general character.[16] Accordingly, I accept your offending conduct is an aberration of otherwise good character and I take this into account in your favour.
[16] Ex D4.
67 You were a youthful offender at the time of committing the offence, being aged 23 years. You are now 25 years of age and still relatively youthful. I must give significant weight to your rehabilitation in sentencing you. In this regard it is noteworthy you have been abstinent from alcohol since 19 April 2021, which augers well for your future prospects for rehabilitation. You also have a trade and good future job prospects.
68 The effect of delay is a mitigating circumstance in your case. You were interviewed by police in relation to this offending on 2 April 2020 and charged on 23 April 2020. It is now nearly two years since you were charged.
69 As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[17]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[18]
[17] (2013) 40 VR 436.
[18] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
70 You have made significant efforts towards your rehabilitation during this period of delay by abstaining from alcohol consumption which, given the extent of your addiction, is to be commended. You have also remained offence free.
71 So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
72 The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[19]
[19] The Queen v Madex [2020] VSC 145 [52].
(b) As I previously observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[20]
[20] DPP v Bourke [2020] VSC 130 [32].
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[21]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
Application of Sentencing Principles
[21] Brown v The Queen [2020] VSCA 60 [48].
73 I have had regard to current sentencing practices in relation to the charge of aggravated burglary as informed by the decisions of the High Court of Australia in R v Kilic[22] and DPP (Vic) v Dalgliesh (a Pseudonym)[23] and the Victorian Court of Appeal decision in DPP v Zhuang.[24] In particular, I have considered the comparable cases your counsel referred me to[25] and statistical summaries produced by the Victorian Sentencing Advisory Council.[26]
[22] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[23] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[24] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[25] DPP v Gibson [2021] VCC 1323; DPP v Rovere [2021] VCC 1119; DPP v Carrodus [2021] VCC 1407; DPP v Unwin [2021] VCC 1621.
[26] Victoria, Sentencing Advisory Council, Sentencing Snapshot, ‘Aggravated burglary’, No 237 (April 2020), SACStat Higher Courts, ‘Aggravated burglary’ 21 July 2021.
74 While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[27]
[27] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
75 Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of aggravated burglary and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from these cases and the sentencing statistics, I have sought to do so in your case.
76 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the impact of the offence on the victim, and your personal circumstances.
77 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
78 Just punishment, denunciation, general deterrence and specific deterrence remain relevant sentencing considerations in this case, albeit sensibly moderated by reason of your BPD, both at the time of the offending conduct and at the time of sentence.
79 I assess your prospects for rehabilitation as being excellent so long as you remain abstinent from alcohol. I consider I need give very little weight to protection of the community in sentencing you.
80 The parsimony principle requires I not impose a sentence that involves your confinement unless I consider the purposes for which this sentence is imposed cannot be achieved by a community correction order (‘CCO’) to which one or more of certain specified conditions are attached.[28]
[28] See Sentencing Act 1991 (‘SA’) s 5(4C).
81 Your counsel submitted a sentence of a CCO is within range and appropriate in all the circumstances of your case. The prosecutor submitted a term of imprisonment was the only appropriate sentencing disposition, and that a combined sentence involving a term of imprisonment together with a CCO is within range.[29]
[29] See SA s 44(1).
82 Following the plea hearing, I ordered the preparation of an Extended Pre-Sentence Outcome Report.[30] I received a report dated 14 December 2021,[31] to which I have had regard.
[30] Pursuant to SA s 8A.
[31] Ex C1.
83 In the report, the author, Sarah Hornidge, assessed you as having a low risk of reoffending according to the Level of Service Risk Assessment Tool. She assessed you as suitable for a CCO. A number of program and treatment conditions were recommended to address your risk factors. The risk factors she highlighted are your alcohol problem, offending behaviours, and the lack of stable protective factors in your life. Assessment and treatment for alcohol abuse dependency and offending behaviour programs were recommended. Ms Hornidge did not have the benefit of reading Dr Vincenzi’s psychological court report.
84 So far as assessment and treatment for alcohol abuse dependency is concerned, Ms Hornidge said, although you reported you have ceased all alcohol use, an alcohol treatment condition is recommended to monitor and explore any further treatment needs you may have in this area.
85 As the Victoria Court of Appeal observed in Boulton v The Queen:[32]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[33]
[32] (2014) 46 VR 308.
[33] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
86 In all the circumstances, I consider a lengthy CCO is the appropriate disposition in your case.
Stand up, Mr Simpkins
On the charge of aggravated burglary (Charge 1) you are convicted and sentenced to a Community Correction Order for five years commencing today, with the following conditions:
Pursuant to s 48C of the Sentencing Act 1991 (‘the Act’) – 600 hours of unpaid community work.
Pursuant to s 48CA of the Act up to 100 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Pursuant to s 48D(3)(b) of the Act – assessment and treatment (including testing) for alcohol abuse or dependency.
Pursuant to s 48D(3)(e) of the Act – mental health assessment and treatment.
Pursuant to s 48D(3)(f) of the Act – you are to undergo programs to address factors related to your offending behaviour, including a men’s behaviour change program.
Pursuant to s 48E of the Act – you be supervised, monitored and managed by the Secretary for the period of the order.
Pursuant to s 48K of the Act – there will be a judicial monitoring condition. You are to attend a judicial monitoring hearing on Friday 16 September 2022 at 9.30 am.
Pursuant to s 48(1) of the Act – there is to be a residual condition you are to abstain from the consumption of alcohol for a period of three years from today.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you three years’ imprisonment with a minimum non-parole period of 21 months.
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