Director of Public Prosecutions v Storie
[2024] VCC 1201
•8 August 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW STORIE |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 5 August 2024 | |
DATE OF SENTENCE: | 8 August 2024 | |
CASE MAY BE CITED AS: | DPP v Storie | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1201 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Aggravated home invasion; causing injury intentionally; common assault; causing injury recklessly; threatening to assault an emergency worker on duty.
Legislation Cited: Crimes Act 1958 (Vic) ss 77B, 18, 320, 31(1)(b); Sentencing Act 1991 (Vic) ss 10AC(1), 10AA(4), 6AAA, 18.
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: Total effective sentence of four years’ imprisonment; non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr N. Rolfe | Rolfe Criminal Law |
HER HONOUR:
Introduction
Charges and maximum penalties
1Andrew Storie, you have pleaded guilty to the following offences:
(a) one charge of aggravated home invasion, an offence which carries a maximum penalty of 25 years' imprisonment;[1]
(b) one charge of intentionally causing injury, an offence which carries a maximum penalty of 10 years' imprisonment;[2] and
(c) one charge each of common assault, recklessly causing injury and threatening to assault an emergency worker on duty, which each carry a maximum penalty of five years' imprisonment.[3]
[1]Crimes Act 1958 (Vic) s 77B.
[2]Ibid s 18.
[3]Ibid ss 320, 18, 31(1)(b).
Factual Summary
2On your plea, a prosecution opening dated 26 July 2024 was tendered; it forms the factual basis of your sentence. I briefly summarise parts of its contents here.
3At the time of your offending you were 37 years old and living in Bendigo with your partner and three children.
4Bradley Keith was living in Jacob Street North Bendigo with his mother Rebecca Clarke, his younger brother, Kyal Saunders, and a friend of Ms Clarke's, Sarah Kenworthy; Mr Keith and Ms Clarke are the first two complainants in this matter.
5You and Mr Keith knew each other. You had contacted Mr Keith on previous occasions, though Mr Keith knew you as 'Aaron'.
6Your house was approximately 200 metres away from the house on Jacob Street.
7There are four CCTV cameras on the outside of the Jacob Street house; they capture the front driveway and street, the front door, a rear courtyard that faces the kitchen window, and the back yard.
8On Wednesday 21 June 2023, you went to the Jacob Street house four times; each visit was captured on CCTV. Your first visit was at 2:10 pm; you were let inside and left at 2:13 pm.
9You returned at 5:19 pm and were again let inside.
10
On this second occasion an argument arose between you, Mr Keith and
Mr Saunders.
11CCTV from the courtyard shows a person in the kitchen of the house being repeatedly struck to the head before falling to the floor, and another person then wielding some kind of weapon violently towards the vicinity of the person on the floor.
12The cause of the argument is unclear. The statements about it differ, but it appears that you were either frustrated at not being able to get 'acid' from the house, or being 'ripped off' about a purchase of pills that you had previously bought from the occupants. At committal, Mr Keith denied that he and Mr Saunders were involved in selling drugs. It is tolerably clear that it was you in the earlier CCTV footage being set upon; on any version there is no doubt that when you left after the second visit you had sustained a head injury.
13You returned to the property shortly after at 5:38 pm, and left at 5:43 pm after twice being refused entry.
14At 6:40 pm, your partner Danielle Byrne, saw you walking towards your house from the direction of Jacob Street. Ms Byrne saw that you had blood on the back of your head and on your jumper; you told her that you had 'just got jumped' and that you were going back. Ms Byrne said in her statement that you were in a 'delirious', 'confused', and 'erratic' state in her observation, and that you left again towards Jacob Street with an item up your sleeve.
15You returned to the Jacob Street property at 5:50 pm with two unknown people, a man and a woman. You had a 'jemmy bar' or 'pinch bar' hidden up your sleeve, and the unknown man with you was holding a hammer. The front door was locked, and you attempted to open it without success. You then smashed the glass out of a vertical window to the side of the front door and entered the house with the unknown man and woman; you went in while holding the metal bar, and the unknown man entered holding the hammer. (Charge 1 Aggravated Home Invasion)
16Once you were inside, there was a fight. I pause to note that later, at committal, Ms Clarke would give evidence that she used to keep a machete in her bedroom but had not seen it for over a year. In any event, you used a machete and struck Mr Keith to the top of his head; his head and ear bled, he became dizzy and he drifted in and out of consciousness.
17Mr Keith was later treated at Bendigo Hospital, he had a large laceration on his scalp appearing to extend down to the bone, and a small laceration to his left ear. (Charge 2 Causing Injury Intentionally)
18Ms Clarke had come into the kitchen after hearing the glass window at the front of the house being broken; you raised the machete towards her and she thought you were going to hit her. Instead, you pushed her over and she fell on top of Mr Keith. (Charge 3 Common Law Assault)
19You and the others left the house; you hid the machete under some dirt in a neighbour’s front yard before returning home. When you got home, you had a cut on your nose and blood dripping down your jumper. Your partner saw you to be very confused and called an ambulance for you.
Arrest and subsequent offending
20At approximately 7:00 pm that night, police arrived at the Jacob Street house. They saw a broken glass panel at the front door, and Mr Keith with a large laceration to the head. They also found a steel 'pinch bar' in the kitchen, and a partially buried machete at 7 Jacob Street.
21You were found by police at about 7:13 pm in the front garden of a house in North Bendigo. Your jumper was covered in blood, and you were bleeding from your nose and head.
22After being cautioned you told First Constable Dreschler that you first went to 5 Jacob Street to have a conversation, and that an altercation occurred when you were assaulted with a machete. You said that you 'went back to teach them a lesson', that you swung at the victim with the steel bar, took the machete from the victim and struck him with it. You then asked police, 'Nobody died?' and 'Did I kill him?'. You also admitted to hiding the machete in the garden bed of a nearby house.
23You were taken by ambulance to Bendigo Hospital. While you were in hospital, First Constable Meerman and Leading Senior Constable Larson were on guard duty. Later that night you became increasingly agitated when police refused your request to go outside to smoke. When police told you that you would be handcuffed to the bed, you threatened to break Leading Senior Constable Larson's arms.
24As police attempted to secure you to the bed, you ripped blood-soaked bandages from your face and threw them at Leading Senior Constable Larson, they connected with his upper body. You swung your patient buzzer towards Leading Senior Constable Larson's face, which struck him on the nose and caused him to bleed; Leading Senior Constable Larson was treated by hospital staff. (Charge 4 Causing Injury Recklessly)
25You continued to verbally abuse First Constable Meerman for some time, saying 'I guarantee you I will snap your fucking jaw three times before you hit the ground you fucking dirty dog'. (Part of Charge 5 Threatening to Assault an Emergency Worker on Duty) After First Constable Meerman secured your hand to the bed, you proceeded to say:
'And this other cunt, I said I was gonna put the fucking machete in his head. I hope he's fucking dead. I wish you turned up while you were there. I would've put it in your head ya fucking dirty fucking pig. Fuck you!'
(Part of Charge 5 Threatening to Assault an Emergency Worker on Duty)
26You received treatment to the lacerations on your scalp and nose, and you were later transported to Bendigo Police Station where you were remanded into custody.
27At Bendigo Hospital Mr Keith was treated for a large scalp laceration which appeared to extend down to the bone. He also had a small laceration to his left ear. CT scans identified no intracranial injury and no skull or facial fractures. He was reviewed and his injuries were cleaned and sutured; he was discharged at about 1:10 am the following morning.
Interview
28You answered questions in a police interview on 22 June 2023. You said you had bought $350 worth of Xanax at the house earlier on the day of your offending, and had returned because you had decided they were not real Xanax. You described going back to the house and being attacked with a machete by one of the occupants. When asked what was going through your head when you broke into the house you said: 'I wanted to hurt Brady'.
29You also said, about your behaviour at the hospital that '[You were] a pig at the hospital, and that you were sorry about it'. You described your own conduct as disgusting.
Nature and gravity of offending
30The offence of aggravated home invasion was complete at the moment you entered the house. But what happened once inside informs the seriousness of your intent at the time of your entry.
31You forced your way into a private home by breaking a window. You carried a 'pinch bar' with you. Inside you used a machete, which I must infer you found once inside the house, to strike one of the residents to the head.
32I find that your offending was both unplanned and chaotic; it occurred in the context of you having recently sustained a head injury caused by the occupants of the house during an altercation. That of course did not authorise you to go and extract retribution from those inside, but it informs your general culpability.
33The authorities are perfectly clear about how aggravated home invasion is to be treated by the Courts. The statutory maximum penalty of 25 years' imprisonment speaks of how Parliament regards the seriousness of this offence.
34After your admission to hospital, where you were having your injuries treated and managed, you turned on two police who were doing no more than their duty, and attacked them in an outrageous way; you were abusive and difficult, and caused one of them an injury to the face. You later described your conduct towards them as 'disgusting' and that is about right.
35The neuropsychological and psychological evidence gives some context to your offending. I will return to the content of that material, but in relation to your moral culpability I find it is somewhat lowered by reason of the fact that on this day you had been subjected to a violent assault, were injured, and returned in a reactive and confused state. Your partner describes you as appearing to be in a delirious state and confused and erratic just prior to your offending. In the background of this was your untreated Post Traumatic Stress Disorder. This reduces your culpability on Verdins[4] principles. There was also potentially an underlying mental illness, untreated, or poorly treated. However, the reduction in your culpability is blunted by your introduction of illicit substances into your situation. This confuses the picture somewhat, because part of your condition, how much it is difficult to say precisely, was self-imposed.
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
36I have taken into account what the victims in your case went through, including the physical injury to the man inside the house and to the police, and I considered that as part of the sentencing synthesis in this case.
Prior history
37You have a very limited prior criminal history. You have been dealt with twice in the Magistrates' Court for damaging property, on the second occasion you were also sentenced for an unlawful assault. You were on each occasion given a without conviction adjourned undertaking. This is, in the context of your background, and unusually high 'entry level' form of offending.
Impact on victims
38No victim impact statements were tendered; but I think I can safely infer, that the residents in the house were very frightened and that the injuries to Mr Keith were painful and alarming.
39I also take into account the effect of what you did to the police victims, one of whom had to be treated for the injury to his nose, inflicted by you. This was their workplace; they ought not to have had to absorb this treatment by you.
Personal circumstances
40You are now 38 years old.
41You were born in Melbourne and you are the youngest in your family; you have two older sisters and a brother who work in the disability sector. Your parents are in their seventies and retired. You have a close relationship with your parents and siblings, for which you consider yourself to be 'fortunate'.
42
You have been in a relationship with Danielle for 18 years. You have two daughters together (aged now 15 and 17), and Ms Byrne has one daughter (aged 18) from a previous relationship. Ms Byrne remains supportive of you and you intend to return home to your family when you are released. She is a member of the local Aboriginal community and works at the Bendigo and District Aboriginal
Co-Operative.
43You were raised in Broadmeadows until you were around the age of eight. When your parents were made redundant at work, your family moved to Bendigo. You went to primary school at St Liborius and then Catholic College in Bendigo. You describe your upbringing as a happy one however you experienced difficulties at school; you found yourself in fights, and you experienced bullying from primary school until Year 8. You were expelled from Catholic College in Year 10 due to attendance and behavioural problems.
44You have had, since leaving school, consistent employment across various short-term positions from the age of 14. You worked at an IGA Supermarket, a butcher, a Pie Factory, and as a truck driver. From September 2012, you worked at the Bendigo distribution centre of Lactalis Australia Pty Ltd, a national dairy company. You worked there until your arrest, and you hope to return to your role there upon your release, where a position remains open for you. I note that you are currently employed in horticulture five days a week while in custody.
45Substance abuse though has been a long-standing issue for you. You started drinking alcohol at 13 and you report from the age of 18 until your early twenties you were consuming 12 drinks daily as a 'coping mechanism'. You also began using cannabis at around 13, and your use of that escalated in a similar manner. You have experimented with a range of other illicit substances.
46
I note that you have remained abstinent at times, including for a period of
16 months in 2021. On the day of the offending you used heroin and Xanax. It appears that you have attempted to begin to address these problems whilst in custody, where you have completed a drug and alcohol course.
Psychological evidence
47You have had admissions for psychiatric treatment in hospital. You report being diagnosed with 'Schizoaffective Disorder and Borderline Schizophrenia' at Bendigo Hospital in 2016. However, a more recent assessment finds that there is no evidence of those particular conditions.
48You were the victim of a random assault when you were 18 that has had long term effects on you. A recent neuropsychological assessment concludes:
'His neuropsychological profile does not suggest the presence of an acquired brain injury, rather his presentation and cognitive profile is better explained by his untreated PTSD, substance use disorder, and ADHD. He reported ongoing high levels of anxiety, he feels “muddled”, and required frequent repetition of information to assist with his comprehension'.[5]
[5]Dr Judy Tang, Clinical Neuropsychologist report dated 31 March 2024.
49This conclusion is consistent with that found by Ms Gina Cidoni, psychologist. She finds you have had untreated PTSD, which 'contributes to mood instability and dysregulation particularly when triggered'.
50Ms Cidoni concludes that your mental state at the time of the offending was
'mainly influenced by your substance abuse and the potential worsening of an underlying mental illness, combined with stopping your prescribed medications'.[6]
[6]Gina Cidoni, Psychologist Report dated 1 September 2023.
She found that your cognitive function was compromised.
51It was submitted that your moral culpability, and the roles for general and specific deterrence, were reduced on 'Verdins' principles. I have already dealt with, and partially accepted this in relation to moral culpability. But I do not think there are clear and precise links for the reduction on the other limbs. You are coping relatively well, it would seem, in custody.
Matters in mitigation
52You entered pleas of guilty and this is a very significant matter reducing your sentence. Although not the earliest of pleas, it was valuable. You have spared witnesses the difficulty of further cross examination at trial; you have saved the time and the resources of the Courts.
53It is also significant that when you were ultimately interviewed, you gave a mainly frank account of these events, you told police where the machete was buried, you accepted responsibility for what you had done to police.
54These matters are significantly mitigating on sentence.
Prior good character
55Few people that come before the Courts can attract the quality of character references that were tendered in your case; they are of an exceptionally high standard. They are warm and personal from people very close to you.
56Your manager at Lactalis writes a glowing reference about you and says you will have a position there once you are released. You are highly regarded by your managers and co-workers who like and respect you.
57Several co-workers write of how trusted, hardworking and loyal you are. You put in 12-hour days without complaint. Ms Tingley describes how you spoke with her about the mental health challenges that you face, and her trust in you on that subject. She describes you being in awe of your family and taking real delight in the things that you do together. Leaders in your community have written about your dedication to your children and how you are missed by them.
58They also speak of the occasion where your co-worker died of a sudden heart attack while working alongside you, and of your courageous attempts to save his life, described by one writer as 'truly commendable', who also describes this event taking an obvious personal toll on you afterwards.
59You have used your time in custody productively; you work full time in horticulture and have undertaken courses in study when you can.
Prospects for rehabilitation
60You do not strike me as someone who will fall into an entrenched pattern of criminal offending; you have too much going for you - family, work and high regard in the community.
61I am conscious that lengthy imprisonment can risk eroding the structures that serve your rehabilitation. I find your prospects of rehabilitation are very good to excellent, this being dependent however upon your being given a full psychiatric assessment and review of treatment so that you will no longer need to deal with mental health difficulties on your own with illicit drugs.
Statutory features of sentence
62Aggravated home invasion is a category 1 offence, and you must be sentenced to a term of imprisonment. Pursuant to s 10AC(1) of the Sentencing Act1991[7] that sentence must also involve a minimum non-parole period of three years (unless a 'special reason'[8] exists.
[7](Vic) (‘Sentencing Act’).
[8]Ibid s 10AC(1).
63Section 10AA(4) of the Sentencing Act provides that certain offences, including recklessly causing injury committed against emergency workers on duty (including police) must be dealt with by way of imprisonment of a minimum of six months, unless, again 'special reason’ is established.
64No special reason was argued in your case. Those statutory minimums are engaged.
65There is a powerful role for general deterrence and denunciation in this case, those inclined to enter other people's homes in states of outrage have to know that they will receive stern sentences. The community will be best protected by your rehabilitation and your return to a productive life. I am relatively confident that the role for specific deterrence is slight. The protection of the community is best achieved by your returning to work and family duties, and your receiving treatment for your mental health difficulties.
66I am conscious of the need to avoid double punishment by sentencing you twice for the offending committed inside the house after the completion of the aggravated home invasion. The circumstances of the commission of those two offences, I remind myself, are already accounted for under cover of Charge 1 but they do require some additional sentence.
Disposition
67On Charge 1, aggravated home invasion, you are convicted and sentenced to three years' imprisonment.
68On Charge 2, intentionally causing injury, you are convicted and sentenced to 14 months' imprisonment.
69On Charge 3, common law assault, you are convicted and sentenced to 3 months' imprisonment.
70On Charge 4 recklessly causing injury (emergency worker on duty), you are convicted and sentenced to seven months' imprisonment.
71On Charge 5, threatening an emergency worker, you are convicted and sentenced to 3 months' imprisonment.
72Charge 1 is the base sentence.
73I direct that 7 months of the sentence on Charge 2, four months of the sentence on Charge 4, and one month of the sentence on Charge 5 will be served cumulatively upon each other and upon the sentence on Charge 1, making a total effective sentence of four years' imprisonment .
74I fix a minimum period of three years before you are eligible for parole.
Period on parole:
75I note here as part of this sentence that the relationship between the non-parole period and head sentence is approximately 75 per cent - unusually perhaps a compressed period on parole. I have endeavoured to balance the requirement for a minimum non-parole period of three years with the other factors on sentence; this structure has in part been brought about by the minimum requirements for a mandatory minimum non-parole period, while balancing and synthesising each of the other matters on your sentence.
S 6 AAA
76I indicate pursuant to s 6AAA of the Sentencing Act that had you not pleaded guilty but been found guilty after trial I would have imposed a head sentence of six years, with a non-parole period of four years.
Disposal order
77I grant the application for the disposal of the weapons described in the schedule of the draft disposal order.
78I declare pursuant to s 18 of the Sentencing Act that you have already served by way of pre-sentence detention and to be deducted from your sentence 414 days, to be reckoned as already served.
79Mr Batten, have I neglected any orders?
80MR BATTEN: No, Your Honour..
81HER HONOUR: Mr Rolfe, I will make the court available to you if you want to have a conversation with Mr Storie.
82MR ROLFE: Thank you, Your Honour.
83HER HONOUR: After I leave the Bench. Thank you. Thank you, counsel, for your assistance in this case.
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