Director of Public Prosecutions v Swarbrick
[2022] VCC 1123
•15 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RHYS SWARBRICK |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2022 | |
DATE OF SENTENCE: | 15 July 2022 | |
CASE MAY BE CITED AS: | DPP v Swarbrick | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1123 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty - COVID-19 – Intentionally damage property – aggravated burglary – common law assault – commit indictable offence whilst on bail – Mid-range offending – deterrence – Guarded prospects of rehabilitation – First time in custody – Offender diagnosed with Adjustment Disorder
Cases Cited: DPP v Meyers [2014] VSCA 314; 44 VR 486; Hogarth v The Queen [2012] VSCA 302; 37 VR 658; Worboyes v R [2021] VSCA 169; 96 MVR 344
Sentence: 16 months’ imprisonment, Community Correction Order for a period of 22 months upon release.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Ms K. Sheridan | Slink and Keating |
HIS HONOUR:
1Rhys Swarbrick, you have pleaded guilty to four charges on Indictment M11578656. The charges are as follows:
·Charge 1, at Hamilton on 28 July 2021, you intentionally and without lawful excuse, damaged a motor vehicle belonging to Aaron Rogers.
·Charge 2, at Hamilton on 28 July 2021, you entered as a trespasser a building situated at Coleraine Road with intent to commit an offence involving an assault to a person therein, and at the time had with you an offensive weapon, namely a knife.
·Charge 3, at Hamilton on 28 July 2021, you assaulted Brandon Lougheed.
·Charge 4, at Hamilton on 28 July 2021, you assaulted Aaron Rogers.
2You have also pleaded guilty to Summary Charge 6, being the offence of committing an indictable offence of aggravated burglary while on bail.
Circumstances of Offending
3The circumstances of your offending are set out in the Summary of Prosecution Opening dated 4 March 2022, marked Exhibit P1.
4On the evening of 27 July 2021 you and Samantha Lanyon attended the home of Jessica Paton in Hamilton. You were drinking alcohol. Between midnight and 1.00 am on 28 July, you and Ms Lanyon left Ms Paton's home. You took with you a 'Homemaker Everyday' medium sized knife from Ms Paton's cutlery drawer.
5At approximately 1.30 that morning you attended an address in Hamilton armed with the knife. Brandon Lougheed and Aaron Rogers lived at that address. Ms Lanyon is the former girlfriend of Mr Lougheed. At that time there was an active Family Violence Intervention Order between Ms Lanyon and Mr Lougheed in which Mr Lougheed was the affected family member.
6You used the knife to puncture the front right hand tyre of a Ford sedan parked out the front of the address. The vehicle belonged to Mr Rogers. This conduct is the basis of Charge 1.
7Mr Rogers, who was inside the house, heard a noise and went to the front door. He saw you standing near his car. You then ran towards him and aggressively demanded that he tell you his name. While still in possession of the knife, you pushed Mr Rogers out of the way and entered the house. This conduct is the basis of Charge 2. Mr Rogers swore at you, telling you to get out of the house.
8Meanwhile, Mr Lougheed was asleep on the couch in the living room. You approached him and grabbed him around the throat, demanding he tell you his name. You then said to Mr Rogers, 'If you don't get outta this room I'm gonna fuck you up too'. Mr Rogers tried to stop you from assaulting Mr Lougheed. You grabbed Mr Rogers around the throat and choked him. This conduct is the subject of Charge 4. You demanded to know Mr Lougheed's name.
9You then turned back to Mr Lougheed. You again grabbed him by the throat, dropped him to the ground and asked, 'Are you fucking Brandon Lougheed, cunt?' Mr Lougheed managed to free himself and jumped over the couch, but you grabbed him. You then pushed him up against the wall and punched him in the face causing him to suffer a split lip. This conduct is the subject of Charge 3.
10Mr Lougheed also managed to dodge a few of your punches. At one point you punched and left a blood mark on the wall. DNA analysis of that blood matched your DNA.
11Mr Lougheed managed to escape from you and ran out the front door. You chased after him, slipping on the wet lawn and falling to the ground. You approached Mr Lougheed again and were 'mouthing off' at him. Mr Lougheed yelled at Mr Rogers to call the police. You then walked off. Police attended not long thereafter.
12At approximately 1.49 am you rang the doorbell at the home of Andrew Taylor who lived in Coleraine Road. Mr Taylor saw that your clothing was muddied. You told him that your name was Rhys and that you had been robbed by two males who had taken your phone. You asked for directions to McPhee Street. Mr Taylor offered to call the police and you agreed. As he was on the phone to police you walked away.
13At approximately 2.00 am Sergeant Beaumont saw you on Kenny Street in Hamilton. He approached you and you identified yourself as Rhys Swarbrick. You produced a broken kitchen knife from your pocket which you said had been dropped by a youth who had robbed you near the BP service station on Coleraine Road. You were arrested and taken to Hamilton police station. You were questioned in relation to the offending and you largely answered 'no comment'. You maintained in the interview that you had been assaulted and robbed by a number of males. You consented to your fingerprints and a sample of your DNA being taken.
14You have remained in custody since your arrest.
Victim Impact Statement
15Mr Lougheed provided a victim impact statement which was tendered at the plea hearing and marked Exhibit P2.
16He stated that since your attack he has found it difficult to sleep, waking at any noise he hears. He stated that he is nervous and always looking over his shoulder. He suffers flashbacks to the event and has been left feeling fearful, anxious and violated.
Background and Personal Circumstances
17I turn now to your background and personal circumstances. You were born in November 1991. At the time of the offending you were 29 years of age. You grew up in the suburbs of Cranbourne and Narre Warren. You have two older brothers and an older sister. Your parents separated when you were nine years of age. You lived with your mother until the age of 16 and thereafter with your father. You left your father's home at the age of 19 and lived with your partner Jess, with whom you had an eight-year relationship. Together you had two children, a son who passed away at the age of five months due to SIDS when you were aged 19, and a daughter who is now aged nine. Jess continues to be supportive of you and is willing for you to return to live with her upon your release from custody.
18You attended at various high schools and left school after completing Year 10. You worked as a plasterer with your father until the age of 19. You stopped working with your father when your son passed away. When you returned to work you worked for Jess's father as a locksmith for two years. Subsequently, you resumed work as a plasterer in your own business.
19You began using methylamphetamine at the age of 23 and continued its use to the time of your arrest. You have been using drugs on and off, and you relapsed in more recent times, using up to one and a half grams of methylamphetamine per day following the death of your best friend in 2021.
20Your father, with whom you had a close relationship, passed away from a heart attack several months ago while you were in custody on remand.
21You were assessed by Dr Cunningham on 9 March 2022. You reported to Dr Cunningham a relatively stable childhood without abuse or trauma. You described your relationship with your former partner as 'difficult' and that it ended when you were around 23 or 24. You told Dr Cunningham you used drugs in the context of grief over your son's death and your partner's infidelity. You attempted to cope by escaping into work. You lost your business due to drug use and a 'rollercoaster of emotions'. Your family unit broke down and you lost regular contact with your daughter.
22You told Dr Cunningham that you have support in the community through your older brother, your grandfather, Jess and her family.
23As to your offending, you told Dr Cunningham that you 'were living with your father in a remote location … you were not able to drive and had no transport back from the shops'. Further, that you were 'neglectful of (your) responsibilities when abusing drugs'. You also stated that drug abuse and association with other drug abusers were the main contributors to this offending.
24Dr Cunningham is of the opinion that you meet the criteria for Adjustment Disorder with mixed disturbance of emotions and conduct. He states that you suffered significant trauma at around the age of 19 when your son died. Following the break-up of your relationship with Jess on discovering her infidelity, and losing regular contact with your daughter, Dr Cunningham considers the resultant trauma precipitated the Adjustment Disorder. You experienced, he said, clinically significant anxiety and depression, and engaged in reckless and destructive behaviour through your use of methylamphetamine to escape your emotional pain. In his opinion, your methylamphetamine abuse presents as the main contributor to your offending behaviour.
25Dr Cunningham considers that you present as a moderate risk of future violent offending. He said that drug abuse is the main contributor to the risk of violent re-offending.
26References from your mother, Shonna Dickie, your sister, Tara Hoodless, and James Hart were tendered on your behalf.
27Your mother said she has been visiting you regularly in prison since COVID-19 restrictions on visits eased. She described you as having a 'huge heart' and being profoundly affected by the passing of your son. She said you are remorseful for your offending which has been a difficult lesson for you. In relation to the death of your father, she said you were ashamed when attending his funeral, in handcuffs and accompanied by two prison officers.
28Your sister, Tara, stated that you and she have a great relationship and that she was saddened upon learning that you were in trouble with the law. She described you as a 'happy go lucky brother and uncle' despite the traumatic events in your life. She said you were an attentive father to your daughter.
29James Hart is the father of your former partner Jess. He is also your former employer. He writes of your shame and remorse for your offending. Notwithstanding your offending, Mr Hart writes that you are a decent, hard‑working, loyal and trustworthy person. He has offered you full‑time employment upon your release.
Criminal History
30You have admitted your criminal record.
31You incurred your first criminal conviction in 2011 for the offence of recklessly causing injury. You were sentenced in the Dandenong Magistrates' Court to a 12-month community-based order with conditions, including that you attend programs for alcohol awareness, men's behaviour change, anger management and road trauma.
32In 2016 you were convicted and sentenced at the Dandenong Magistrates' Court to another 12-month community correction order (CCO) with therapeutic conditions for the offence of unlawful assault.
33On 12 May 2017 you were convicted of breaching the CCO imposed in 2016, as well as further offences of speeding, failing an oral fluid test within three hours of driving and driving whilst authorisation was suspended. In respect of the breach, the learned magistrate varied the original community correction order to run for a further 12 months. As for the further offending, you were sentenced to a 12‑month CCO with therapeutic conditions and you were disqualified from driving for 12 months.
34On 14 September 2018 you were convicted and fined $1,200 for the offences of unlicensed driving and failing to answer bail.
35On 27 November 2018 you were convicted of breaching the CCOs imposed in 2017. Those CCOs were varied to run for 24 months with therapeutic conditions.
36On 25 November 2019 you appeared before the Dandenong Magistrates' Court where a contravention of your CCO was found proven.
Submissions
37Ms Sheridan, who appeared on your behalf, relied on your pleas of guilty, the conditions under which you have been on remand as a result of the COVID-19 restrictions within the prison system, your mental health diagnosis of Adjustment Disorder, and your prospects of rehabilitation.
38Ms Sheridan submitted I should sentence you to a term of imprisonment followed by a community correction order.
39Mr O'Doherty, who appeared on behalf of the Director of Public Prosecutions, relied on the decision in DPP v Meyers.[1] He submitted that regard should be had to that decision in my assessment of the gravity of your offending.
[1] (2014) 44 VR 486.
40Mr O'Doherty also submitted that I should find that you went specifically to the victims' residence in order to assault Mr Lougheed, the former boyfriend of Ms Lanyon, particularly having regard to your failure to explain why else you went to that address.
41Notwithstanding the seriousness of your offending, particularly the aggravated burglary charge, Mr O'Doherty submitted that it was open to me to impose a combination sentence.
CCO Assessment
42A pre-sentence report was obtained to determine your suitability for a CCO in the event that I agreed with the sentencing submissions.
43You told the assessing officer that you accepted full responsibility for your offending. You also stated that there was no planning involved in your offending. For reasons that will shortly be explained, I reject that assertion. You further stated that you were heavily intoxicated at the time, that you had been drinking over a 10-hour period, and that your recollection of the events is hazy due to your state of intoxication.
44The author of the report stated that you have contravened five previous community correction or community-based orders, and that there are two current contraventions before the court. You stated that you had done very little on the previous orders as you lacked motivation, were continuing to abuse substances, and had a poor state of mental health.
45Notwithstanding previous breaches of CCOs, you have been found suitable for a further CCO. You have been assessed as a high risk of generalised re-offending by the author of the report who used the level of service inventory tool. The report author has made a number of recommendations for programs in the event that I place you on an order. The programs recommended are designed primarily to assist in your rehabilitation.
Consideration
46The seriousness of your offending is marked, amongst other things, by the maximum penalties that may be imposed.
47The offence of aggravated burglary carries a maximum penalty of 25 years' imprisonment; the offence of intentionally damaging property carries a maximum penalty of 10 years' imprisonment; and the offence of common law assault carries a maximum penalty of five years' imprisonment. The summary charge of committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment.
48I accept the prosecution submission that you went to the victims' address to assault Mr Lougheed. This is consistent with your plea of guilty to Charge 2. Furthermore, at the time you entered the building you had with you an offensive weapon, namely a knife. Your offending is an instance of what is sometimes referred to as a 'confrontational aggravated burglary'.[2]
[2]Hogarth v The Queen (2012) 37 VR 658
49I find that your offending was premeditated. You armed yourself with a knife and made your way to the address of Mr Lougheed in order to confront him, in my opinion, for reasons to do with Ms Lanyon. What those reasons were I am unable to say. You attended the address, in my opinion, knowing or believing that Mr Lougheed would be there.
50You were insistent on the persons whom you confronted telling you their name and, in fact, asked Mr Lougheed, 'Are you fucking Brandon Lougheed, cunt'. To be clear, I am satisfied beyond reasonable doubt that you were looking for Mr Lougheed, the former boyfriend of your friend Samantha Lanyon, to assault him.
51On arrival at the victims' address, you deliberately punctured the tyre of Mr Rogers' car, which was parked at the front of the address. Your conduct inside the premises was threatening, violent and directed to finding Mr Lougheed. This was purposive conduct. Your moral culpability, in my opinion, is high. I do not consider that your Adjustment Disorder reduces your moral culpability, nor was it suggested that it did.
52As was stated in the Director of Public Prosecutions v Meyers:[3]
Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.
[3](2014) 44 VR 486, [6]
53In Meyers the court stated at paragraphs 47 and 48:
Determining the sentence to be imposed for any particular offence of aggravated burglary will in large part depend on a careful assessment of the (relative) seriousness of the offence …
In our view, the following considerations will ordinarily be relevant to such an assessment:
· the offender's intent at the point of entry (whether to steal or commit assault or cause damage);
· the mode of entry (e.g. by forcing a door or breaking a window);
· 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/or about where the person or persons would be; and
· whether the offender was someone of whom the victim was particularly frightened.
54In your case, your intent, at the point of entry, was to commit an assault to a person therein. You were armed with an offensive weapon, namely a knife. Your mode of entry was by pushing Mr Rogers out of the way and entering the house. That is, you forced your way into the house. You were alone at the time of the aggravated burglary.
55The burglary took place in the small hours of the morning and I find that you knew or believed Mr Lougheed would be present.
56I do not find that you were previously known to the victims or that they had reason to be particularly frightened of you before the offending, but I have little doubt that to be confronted in the manner each of them were, in the small hours of the morning, and then assaulted by a man armed with a knife, in their own home, would have been a terrifying experience.
57I place your offending in the mid-range of seriousness, having regard to all of the circumstances in which your offending was committed.
58As I earlier mentioned, Mr Lougheed stated that since the attack he finds it difficult to sleep and is woken by any noise. He ensures that all windows and doors are locked, even during the day, and even a knock on the door makes him nervous. He is constantly looking over his shoulder and has flashbacks of the event. He stated that he has been left fearful, anxious and violated.
59General deterrence is a significant consideration. That is, persons who contemplate such an offence should understand that if they do commit such an offence they risk stern punishment.
60In your case, given your history of violent offending and offending generally, the sentence to be imposed must also be calculated to deter you from further offending.
61I have had regard to the principles of deterrence, just punishment and the protection of the community in determining an appropriate sentence. Your conduct may be described as thuggish and is properly to be denounced.
62I have also had regard to your pleas of guilty which were entered at the earliest opportunity. The charges against you resolved at a committal mention.
63Your pleas of guilty have significant utilitarian benefits to the court and the community and I must give full effect to them. They have spared the victims and other witnesses from having to give evidence at a committal hearing and at trial before a jury. There has also been a saving in the costs of proceedings and the time necessarily involved in such proceedings. You pleas of guilty have added significance given the impact of the COVID-19 pandemic on the court's lists. As was stated in Worboyes v The Queen:[4]
A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[5]
[4][2021] VSCA 169
[5]Ibid [39]
64I accept also the submission that your pleas of guilty are indicative of some remorse and an acceptance by you of your responsibility for the offending.
65I note also your remorse as expressed to the author of the Corrections report and your referees.
66As to your prospects for rehabilitation, I have had full regard to the submissions of Ms Sheridan, both oral and in writing, but I am not, at this point in time, able to find them anything other than guarded. Although you express motivation to change, and have support in the community, including the opportunity for work, you nevertheless have a long history of drug abuse for which you require treatment. As stated by Dr Cunningham, ceasing drug abuse would be the main factor in reducing your risk of re-offending. Should you be successful in abstaining from illicit drug use upon your release, then it is likely that, with the support you have from friends and family, your prospects of rehabilitation would be good.
67I have also had regard to the numerous opportunities you have previously been given by the courts with the imposition of community correction orders that have attached to them therapeutic programs. You did not, in the past, take advantage of those opportunities.
68I accept that this is your first time in custody and that it has, in all probability, served as a huge wake-up call, as was submitted by Ms Sheridan. I accept also that the pandemic has led to greater hardship for persons held in custody given the greater restrictions imposed on prisoners by reason of the pandemic. I note that you have been required to serve time in quarantine on four occasions and that your experience in custody has been difficult. Those matters will be taken into account in determining the appropriate sentence.
69In sentencing you, as was stated in Meyers, I must take care to ensure that you are not doubly punished for offences committed after entry into the house. The offence of aggravated burglary is complete upon entry. You fall to be sentenced separately in relation to the assaults that occurred after your entry.
70In sentencing you I will have regard generally to your Adjustment Disorder, but I note there was no reliance placed upon the decision of Verdins.[6] Whilst I do not consider the disorder reduces your culpability, it does call for the need for treatment if you are to have any hope of rehabilitation.
[6]R v Verdins (2007) 16 VR 269
71I have had regard to current sentencing practices in relation to the offences of aggravated burglary, common assault and property damage. The sentencing cases provide only a general yardstick and sentencing practice is only one of a number of factors to which I am to have regard. The cases show that a wide range of sentences have been imposed for similar offences, reflecting the myriad differences in both the way such offences are committed and the personal circumstances of those who commit them.
72After balancing all relevant sentencing considerations, I am prepared to accede to the submission of your counsel, accepted by the learned prosecutor as appropriate, to impose a combination sentence. I do so with some hesitation given your past failures at complying with correction orders. However, it is hoped that your experience of custody will have served to deter you from further offending and given you cause to reflect on your drug abuse and its impact on you, your family and the community in general.
73You will be required to serve some further time in custody before being released on a community correction order. I propose that you will be closely monitored by this court upon your release.
74The sentence to be imposed is as follows:
On Charge 1, intentionally damaging property, you are convicted and sentenced to a term of imprisonment of one month.
On Charge 2, you are convicted and sentenced to a term of imprisonment of 14 months, together with a community correction order for a period of 22 months following your release. The community correction order will have the following conditions:
·You must attend at the Pakenham Community Correctional Services office within two clear working days after the commencement of this order, which will commence upon completion of the term of imprisonment.
·You must not commit another offence for which you could be imprisoned during the time that the order is in force.
·You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations of 2011. That is, Mr Swarbrick, you must not attend at the Community Corrections office under the influence of alcohol or drugs.
·You must report to and receive visits from the Secretary or his or her delegate.
·You must let a Community Corrections officer know within two clear working days of you changing your address or job.
·You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
·You must obey all lawful instructions from, and directions of, the Secretary or his or her delegate.
·You must perform 80 hours of unpaid community work over a period of 22 months as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with this aspect of the order the Secretary to the Department of Justice, or his or her delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
·You must be under the supervision of a Community Corrections officer for a period of 22 months.
·You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager.
·You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager.
·You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
·You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
·You must reappear at court for a review of your compliance with the order as directed by the court and you must attend the first such review on 9 December 2022 at 9.30 am at the Melbourne County Court.
75On Charge 3, common law assault, you are convicted and sentenced to three months' imprisonment.
76On Charge 4, common law assault, you are convicted and sentenced to two months' imprisonment.
77On the summary charge of committing an indictable offence while on bail you are sentenced to one month's imprisonment
78Having regard to the principle of totality, I will direct that the sentence imposed on Charge 2 be the base sentence. One month of the sentence imposed on Charge 3, and one month of the sentence imposed on Charge 4, are to be served cumulatively on each other and on the base sentence.
79This makes a total effective sentence of 16 months' imprisonment and a community correction order for a period of 22 months from your release on the terms I have mentioned.
80Pursuant to s18 of the Sentencing Act, I declare that 352 days, not including today, be reckoned as having already been served under the sentence.
81Had it not been for your pleas of guilty, Mr Swarbrick, the sentence I would otherwise have imposed is one of three years' imprisonment, with a non-parole period of 26 months' imprisonment.
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