Director of Public Prosecutions v Towers
[2023] VCC 774
•15 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00912
CR-22-01980
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK TOWERS |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2023 | |
DATE OF SENTENCE: | 15 May 2023 | |
CASE MAY BE CITED AS: | DPP v Towers | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 774 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft – Attempting to pervert the course of justice – Aggravated burglary – Conduct endangering life – Possessing a firearm contrary to a firearm prohibition order
Legislation Cited: s22, s74, s77 Crimes Act 1958 (Vic) – s112B Firearms Act 1996 (Vic) – s6AAA, s18(4) Sentencing Act 1991 (Vic)
Cases Cited:Carter v The Queen [2020] VSCA 156 – Hogarth v The Queen [2012] VSCA 302 – DPP v Worboyes [2021] VSCA 196 – R v Verdins (2007) – 16 VR 269 DPP v Dalgliesh (a pseudonym) (2017) HCA 41
Sentence: Total effective sentence of 7 years and 6 months imprisonment, non-parole period of 5 years and 6 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Phillips | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | May Lawyers |
HIS HONOUR:
Introduction
1Jack Towers, you have pleaded guilty to one indictment (No. M12530384) ('the first indictment') containing one charge of theft, which carries a maximum penalty of 10 years' imprisonment, and one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years' imprisonment. In relation to this indictment, you have also pleaded guilty to a related summary offence of trespass, which carries a maximum penalty of six months' imprisonment.
2You have also pleaded guilty to another indictment (No. N11264195) ('the second indictment') containing one charge of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment, one charge of conduct endangering life, which carries a maximum penalty of 10 years' imprisonment, and one charge of possessing a firearm contrary to a firearm prohibition order, which carries a maximum penalty of 10 years' imprisonment. In relation to this indictment, you have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.
3At your arraignment before me at the County Court sitting at Ballarat on 16 March 2023, in addition to entering pleas of guilty to all of these charges, you admitted your extensive criminal history.
Circumstances of offending
4Dealing with the charges relating to the first indictment, as at 5 October 2021, you were aged 37. Some weeks earlier, on 6 September 2021, at the Melbourne Magistrates' Court, in relation to charges which included trafficking in a drug of dependence, you received a combination sentence involving 104 days' imprisonment, served prior to the date of that sentencing, together with an 18-month community corrections order. Accordingly, you were subject to this community corrections order as at the date of the offending referable to the first indictment.
5Your co-offender in relation to this matter, Joshua Carter, knew the victim,
Kristy Schweinzer, and would historically attend her home when in the area as he has family nearby. At 8.37 pm on 5 October 2021, Ms Schweinzer was at home with her two children. Her address has four cameras affixed to it, capturing closed circuit television footage. A white van, containing your co-offender, Mr Carter, yourself and an unidentified third offender, was parked outside Ms Schweinzer's house in Whittington, and all three of you got out of the car, you exiting from the driver's seat. With the gate at the front fence of the address locked, you jumped the fence and greeted Ms Schweinzer's dog before opening the gate for Mr Carter and the third offender. You were wearing a medical face mask at the time.6Mr Carter walked to a front window of the property, to the right of the front door, and shone his illuminated mobile phone into the window which looked into the living room of the home. You then walked to the door and opened it, before walking inside the house and out of sight of the CCTV cameras. Mr Carter and the third offender followed you inside. Your conduct in this regard forms the basis of the related summary offence of trespass, entering the property without any authority from the occupier or without any legitimate purpose.
7Ms Schweinzer had been in the backyard, and walked back inside the house where she observed Mr Carter in her house at the front entrance. Recognising him, she asked what he was doing there, to which Mr Carter replied 'I thought I was allowed in here'. When Ms Schweinzer indicated that he was not, Mr Carter indicated 'There's another one behind you'. Ms Schweinzer turned around and observed you behind her, and you jingled her keys in front of her. Ms Schweinzer did not recognise you. The key lanyard held by you had been in Ms Schweinzer's handbag in the kitchen. It contained the only key to her 1995 blue Holden Statesman. Ms Schweinzer asked for her keys from you collectively as you walked out the front door. Ms Schweinzer stood in the doorway before you walked past her onto the front balcony. Whilst in the front yard, you removed Ms Schweinzer's key lanyard from your pocket, looked at what appeared to be a large, black car key on the lanyard whilst walking towards the front gate, and then turned and walked back to Ms Schweinzer. All of this was captured on CCTV footage. You walked up to Ms Schweinzer, showed her the key lanyard, then walked towards the driveway. Collectively, you then walked to the front gate where you opened the gate and the three of you exited the property. The Statesman was parked on the nature strip outside Ms Schweinzer's address. Two offenders entered the van and one entered the Statesman, with the van driving south out of sight of the CCTV, followed by the Statesman. Your involvement in the theft of the Statesman forms the basis for Charge 1 on the first indictment, theft.
8The stolen vehicle was subsequently located by police the following day, at approximately 10.50 pm on 6 October 2021 in Norlane. DNA analysis with regards to items left in the vehicle, subsequently implicated both you and your co-offender, Mr Carter. Subsequent police investigations further implicated you in this offending.
9On 17 November 2021, you were remanded in custody for unrelated offending. Whilst in custody, you made a number of calls during which you requested other people to seek witnesses to change their statements, offer money for witnesses to change their statements, and offer money for other persons to take responsibility for the offending. Those calls, which were recorded, were set out at paragraphs 35‑43 of the amended summary of prosecution opening on plea dated 29 July 2022, Exhibit 1 at your plea hearing. Your conduct in this regard forms the basis of Charge 2 on the first indictment, attempting to pervert the course of justice.
10The charges with regards to the theft and trespass were filed in December 2021. The charge with regards to the attempt to pervert the course of justice offending was filed on 23 March 2022. Having originally been placed on summons with regards to the earlier charges, upon the matter resolving at a committal mention on 27 May 2022, you entered into bail with regards to this matter. That bail was revoked on 18 January 2023.
11Some weeks after being granted bail with regards to the first indictment, and therefore whilst being subject to that grant of bail, you committed the offences related to the second indictment. Your offending in relation to this matter was set out in the amended summary of prosecution opening on plea dated 6 January 2023, Exhibit 2 at your plea hearing. This offending can be briefly summarised.
12At the time of this offending, you were aged 38. In addition to the grant of bail with regards to the attempt to pervert the course of justice charge and related offending, you were also subject to a second grant of bail with regards to unrelated summary matters. Pursuant to this grant of bail, you were to reside at The Cottage, a drug and alcohol rehabilitation facility located in Shepparton. You were exited from this facility on 4 June 2022, for using drugs on the premises. Your offending in relation to the second indictment took place three days later on 7 June 2022. You ultimately returned to The Cottage on 13 June 2022, before being arrested in relation to the second indictment offences on 21 June 2022. As I indicated earlier, you were also subject to a community corrections order imposed on 6 September 2021 at the time of this offending.
13On Tuesday 7 June 2022, your victim in this matter, Larry Lambert, was sleeping in his bedroom at his property in Ballarat East. The address is a residential block of units. At 7.34 am, CCTV showed a maroon Holden Commodore with false registration plates driving past Mr Lambert's address. Eight minutes later, you were captured on CCTV walking back from where the vehicle had driven, across the road from Mr Lambert's address. You sat on the kerb behind a parked vehicle, before walking across the road and standing near the rear of the block of units, remaining there for about two minutes.
14At about 8.02 am, yourself and an unknown male were captured on CCTV from a neighbouring unit, driving into the communal driveway at Mr Lambert's address. You were in the front passenger's seat of this vehicle. You both exited the vehicle, and approached Mr Lambert's front door where you knocked on the door. CCTV footage revealed the clothing that you were wearing at this time, which included a medical face mask.
15After Mr Lambert did not answer the front door, you went to the rear yard behind a fence, whilst the unidentified male remained at the front of Mr Lambert's unit. You approached Mr Lambert's bedroom window, and yelled out 'Larry' and knocked on the window, before picking up a shovel that was propped by the bedroom window. At this point, the CCTV footage reveals a black handgun tucked into the front of your jacket. You then attempted to gain entry to Mr Lambert's rear door, using the shovel to jimmy it open, which activated an alarm in Mr Lambert's home. You again shouted Mr Lambert's name, whilst continuing to jimmy open the rear door and window, again temporarily activating the alarm.
16You then attempted to jimmy open Mr Lambert's bedroom window before yelling out 'Larry, open the door. I will tell you when I come inside. You haven't seen me for a long time, but you owe me money from Melbourne'. You then pulled the firearm from your jacket, and used it to strike the bedroom window and bathroom window. You then picked up a metal rectangular object in the rear yard and used this object to smash the bottom panel of the bathroom window. You then used your arm to clear out the glass and attempted to climb through the window with the firearm in your right hand. At this point, Mr Lambert, who was in possession of a pinch bar, swung at you from inside the property, and yelled 'Get out of here'. You took a step back and discharged the firearm into the bathroom where Mr Lambert was then standing. You again attempted to climb through the window with the firearm, with your head, shoulders and one of your legs inside the bathroom before Mr Lambert used the pinch bar to deter you again. You then retreated, before kneeling down and putting your entire arm through the window. You discharged the firearm into the bathroom towards Mr Lambert again. You then fled the scene by jumping over the rear fence. All of this was captured on CCTV footage which was played at your plea hearing, tendered and marked Exhibit 3.
17During the incident, Mr Lambert thankfully was not harmed. One bullet was retrieved after the incident from the damage to the internal laundry wall next to the doorway. A subsequent statement from the Ballistics Unit of Victoria Police Forensic Services Centre concluded that a second bullet was fired, which ricocheted off the laundry floor and into the laundry door, likely landing in the master bedroom. That second bullet was likely kicked away, lodged in a shoe or removed prior to police attendance.
18At the time of this offending, you were subject to a firearm prohibition order, which was effective from 15 December 2020 until 15 December 2030. Your conduct in possessing a firearm whilst subject to this firearm prohibition order, forms the basis of Charge 3 on this indictment.
19You were subsequently arrested on 21 June 2022 at The Cottage in Shepparton, and you were interviewed where you made no comment. Subsequent analysis, including DNA, analysis of clothing and distinctive markings on your body, implicated you with regards to your involvement in this offence. You were remanded in custody from the date of your arrest on 21 June 2022. As at the date of today's sentencing, you have been in custody for a total of 268 days.
Nature and seriousness of your offending and your role in it
20
Turning firstly to the charges relating to the first indictment, the gravity of your offending is reflected through the relevant maximum penalties to which I have had regard. Significantly, you have not been charged with regards to any specific illegal intent regarding your entry to Ms Schweinzer's property, and you fall to be sentenced simply as a trespasser, a person who had no legal authority to be in
Ms Schweinzer's property at the relevant time. However, you were a trespasser whilst in company with others in the home of your female victim and her children. To say the least, your presence inside her home must have been extremely disconcerting. Through your plea of guilty, you have admitted your involvement in the theft of the motor vehicle which was then parked outside Ms Schweinzer's home. A motor vehicle is often considered a significant asset by the owner, and the inconvenience and stress associated with its theft can be considerable, particularly given your extensive criminal history, the details of which I will soon outline, the sentencing purposes of specific deterrence and general deterrence loom large with regards to this offence.
21By far the most serious offence relevant to the first indictment, is the attempt to pervert the course of justice offence, which carries a maximum penalty of 25 years' imprisonment. Self-evidently, this offence is extremely serious. Such conduct strikes at the very heart of the administration of justice, and the authorities have made clear that such offending must be viewed seriously and denounced properly.[1] Such conduct essentially undermines the prosecution's ability to bring an accused person to justice, and may result in serious harm to public safety and the rule of law. Your conduct was not isolated. It extended over a period exceeding three weeks, between 23 November and 13 December 2021. During that period, as indicated in the amended summary of prosecution opening on plea, you were involved in nine telephone calls whilst you were remanded in custody, where you made a number of requests of others to essentially facilitate you not being prosecuted in relation to the charges relating to Ms Schweinzer. You variously asked others to offer the witness money to drop the charges, you requested that another person persuade the witness to change their statements to state that you were not present during the offending, you requested a person to go to the witness's house to offer money to revoke their statement, you asked a person to encourage the witness to change their statement to indicate that you were invited around and were allowed to borrow the car, you asked a person to ensure that the witness statement indicated that you were allowed to be at the home, and you asked a person to speak to the witness to change their statement to indicate that you had been in the car before. This conduct, in my view, represents fairly determined and sustained efforts on your part to avoid implication in the offending. In your last call on 13 December 2021, you referred to a witness signing an affidavit, and referred to a request to indicate that you had been in the car before, in my view, displaying a degree of understanding with regards to the evidence implicating you in the substantive offending. To that end, I regard your offending as having a degree of sophistication. As indicated by your counsel, these calls were made from prison, where prisoners are clearly informed at the beginning of every call that the conversation may be recorded. To that extent, detection was somewhat inevitable, and this aspect prevents a finding that your offending had any significant degree of careful forethought or significant sophistication.
[1]Carter v The Queen [2020] VSCA 156 at paragraph 70.
22In formulating an appropriate sentence in your case, I have considered the nature and gravity of this particular offence. In that regard, I have considered previous sentencing decisions, noting that sentences vary significantly. Factors often considered with regards to gravity and culpability include the consequences that the offending was calculated to avoid, the duration and repetitive nature of the offending, whether the offending involved threats of violence, whether it was spontaneous or premeditated, and the motive involved. Certainly, other cases involve an attempt to avoid considerably more serious consequences than yours, given the nature of the charges arising out of the incident on 5 October 2021. There were no threats of violence involved, as is sometimes the case. However, as I have indicated, your conduct was not spontaneous, it continued over a number of weeks, and was rather persistent. In those circumstances, your efforts to avoid implication with regards to the substantive criminal offending must, in my view, be seen as a relatively serious example of the crime of attempting to pervert the course of justice.
23I turn now to the second indictment, and a consideration of the nature and gravity of this offending. As was the case with the first indictment, the relevant statutory maximum penalties inform the seriousness of these charges. In my view, the aggravated burglary must be seen as a serious example of this particular offence. You entered Mr Lambert's home in the early hours of the morning, a place where he was entitled to feel safe. Through your plea of guilty, you have acknowledged that you entered Mr Lambert's home with an intention to assault, and at the time had with you a handgun. This was, in my view, a confrontational aggravated burglary, an egregious form of this offence.[2] At the time of entry, you had with you an extremely serious weapon, a loaded handgun. When you were assessed by neuropsychologist, Dr Kelly Sinclair, on 1 February 2023, you indicated that you did not clearly recall this offending due to your use of GHB and Xanax at that time. You indicated that you had recently been evicted from The Cottage, that you thought you were going to end up in gaol, and therefore you used as many drugs as you could. You acknowledged that your drug use had contributed to this offending, as well as anger management problems. When you attempted to gain entry to Mr Lambert's home through the bedroom window, you referred to him owing you money. Whatever the grievance, your conduct in entering Mr Lambert's home as a trespasser, whilst drug affected, with an intention to assault, whilst in possession of a loaded handgun, represents an extremely serious example of the offence of aggravated burglary. Whilst no victim impact statement was provided by Mr Lambert, it can be readily assumed that he must have been extremely fearful at this time. Self-evidently, your conduct was extremely dangerous. Such serious conduct must be denounced.
[2]Hogarth v The Queen [2012] VSCA 302.
24Likewise, your conduct in discharging the firearm in the direction of Mr Lambert on more than one occasion must be seen as a serious example of the offence of recklessly engaging in conduct that places another in danger of death. As indicated in the amended summary of prosecution opening on plea, Exhibit 2 at your plea hearing, you discharged your firearm once as Mr Lambert swung at you from inside the property and yelled at you to get out. You then took a step back and discharged the firearm into the bathroom where Mr Lambert was then standing. This was, in my view, purposeful conduct on your part, firing a lethal weapon in the general direction of Mr Lambert. Upon you again trying to climb through the window and being deterred by Mr Lambert, you retreated, knelt down, put your entire arm through the window and then discharged the firearm into the bathroom towards Mr Lambert again. In combination, this was purposeful and determined conduct on your part. The discharge of a loaded weapon in the direction of your victim self-evidently involved a considerable danger to Mr Lambert, and the fact that you repeated this conduct elevates in my view, the seriousness of this particular offence and your culpability for it. It is fortunate that your conduct in this regard did not have more significant consequences for Mr Lambert. As I indicated at your plea hearing, upon viewing the relevant CCTV footage, your conduct in this regard was chilling to say the least. Again, given your reference to using as much drugs as possible to the neuropsychologist, the inherent dangerousness of your conduct cannot be overstated. This must be seen as a serious example of the offence of conduct endangering life.
25At the time of your offending, you were subject to a firearm prohibition order, effective from 15 December 2020. Your possession of the loaded handgun in these circumstances further accentuates the seriousness of your conduct overall. You have a considerable criminal history with regards to possession of firearms. By an order, you were prohibited from possessing firearms. There are obvious community safety aspects underlying such a prohibition order, and your flagrant breach of this order in such serious circumstances is a matter of considerable concern. Your conduct in this regard must be denounced, there is a considerable need for specific deterrence, and the community must be protected with regards to such conduct.
26Each aspect of your offending with regards to the second indictment involved separate and distinct criminality, warranting in my view, a degree of cumulation to reflect this, subject as always to the overarching principle of totality and the need to avoid a crushing sentence and I make the same remark with regards to the first indictment, that is the charges represent separate and distinct criminality, warranting a degree of cumulation.
27In relation to all offences, you were then subject to a community corrections order, one of the mandatory conditions of which was to not commit any offence punishable by a term of imprisonment. With regards to the second indictment offending, you were also subject to a grant of bail with regards to the first indictment. These matters elevate your culpability for the offending.
Personal circumstances
28You are now 39 years of age. You are the second child to your parents, who separated when you were young. You have reported that your father is a Torres Strait Islander. You have limited contact with your older brother, Daniel. You were born in Melbourne, but your family moved to Queenscliff when you were aged about six. In terms of your education, you have partially completed Year 9.
29A detailed account of your personal history was contained in the neuropsychological report from Dr Kelly Sinclair, dated 15 February 2023, which drew upon previous psychological reports and other collateral documentation. You have reported leaving the family home at around the age of 15, and that you were always getting into trouble during your teenage years. From your early years, you have, it seems, reported a longstanding history of polysubstance abuse. You started using cannabis daily from around the age of ten. You would use various inhalants daily from the age of 12 and you gradually transitioned to other substances from there. By around the age of 15 or 16, you were using ecstasy, speed and ice intravenously daily up until your late twenties. At around the age of 15 or 16, you also started using cocaine occasionally. You have reported using heroin from your twenties and using this with ice every day until about the age of 28. You also occasionally used benzodiazepines in your twenties. As I have indicated, at the time of the offending, you reported using GHB and Xanax daily.
30You have reported that your father in particular has always been supportive of you, and I note that he was present remotely at your initial plea hearing. Your father apparently has a work history in the film industry, as a consultant and also as a pilot. You have previously worked in the area of lighting in film production, through your father's connections, in the years 2000 and 2001. In 2001, your father apparently sent you up to Queensland and you stayed there for a period of time, working in various jobs, including on a turf farm and with a parachuting company. You then obtained some work in Western Australia on oil rigs. This it seems was your last period of gainful employment, now many years ago.
31You have previously sustained intimate relationships, including one for some 16 years, beginning in your teenage years, from which you have two children aged eight and seven. You have also had a brief relationship with another woman, from which you have one child aged approximately three years old.
32Your problematic progress in general seems to have commenced around the early 2000s, following the cessation of employment and the ever-increasing problems on your part, with regards to illicit substance use and abuse. Mr Page, who appeared on your behalf at your plea hearing, in helpful submissions, indicated that your recall of your progress from this period is rather hazy, likely due to your increased drug use and other problems. Your criminal history starts in 2001, and is extensive and concerning. From about the year 2005, there is clearly a steady escalation in the seriousness and consistency of your offending, and I was informed that this corresponds with your ice use essentially taking hold of you. According to your counsel, whilst your illicit substance use initially existed alongside your work, it escalated to become your reason for being, hence the degradation with regards to your general life circumstances. You reported to Dr Sinclair that you have essentially been in prison for most of the last 10 years. This is consistent with your criminal history, and your counsel noted that the history from 2013 onwards is marked by consistent and indeed prolific court appearances.
33In 2006, your father was apparently involved in a plane crash in Papua New Guinea and was subsequently rendered a quadriplegic. When you have not been in custody, you have played a supporting role with regards to your father, but sadly for the bulk of the past decade, you have often been in custody.
34I was informed and accept that your offending is significantly impacted by your drug use and problematic behaviours associated with that. You have received various sentences in the past, including community corrections orders and sentences of imprisonment. You have numerous prior convictions with regards to the possession and use of firearms. You have previously been convicted with regards to intentionally causing injury, make threat to kill, threat to inflict serious injury, assault with a weapon, reckless conduct endangering serious injury, a significant number of dishonesty offences, and possession and trafficking of drugs of dependence. As I have stated, you have numerous prior convictions with regards to the offence of prohibited person possessing a firearm. In October 2020, you received a sentence of imprisonment for possession of a trafficable quantity of firearms. Clearly, previous dispositions have not deterred you from reoffending in an increasingly serious manner. The current offending clearly represents a significant escalation in an otherwise concerning criminal history.
35Your counsel indicated that you have received numerous head injuries and the like, resulting from assaults in the context of your lifestyle and periods of time in custody. Your medical history with regards to previous instances involving losses of consciousness, due to head strikes across your adult life, was outlined in
Dr Sinclair's neuropsychological report. You have described multiple motorbike accidents in your twenties. You described being assaulted with a hammer in approximately 2015. You have described having seizures after head strikes in the past. You had an admission to the Alfred Hospital in 2017, where you sustained a skull fracture which was described as following a fall from a tractor whilst intoxicated. Your counsel, however, informed me that the real cause of this injury was being struck to the head with a hammer. As indicated in the report of Dr Sinclair, you have had subsequent presentations to Emergency Departments at hospitals with regards to episodes of acute intoxication.36Previous assessments have referred to cognitive impairment in the context of an acquired brain injury.
37When you were assessed by neuropsychologist Dr Sinclair, you were only able to provide limited details with regards to your current offending, in the context it seems of significant illicit substance use. Dr Sinclair conducted a comprehensive neuropsychological assessment of you, and set out her opinions at the conclusion of her report, Exhibit B at your plea hearing. Dr Sinclair referred to your diagnosis of an acquired brain injury following previous assessments in 2018 and 2019. She referred to you being a participant to the NDIS. She referred to significant polysubstance use problems for a significant period of time. Dr Sinclair referred to widespread cognitive impairment which is likely multifactorial in nature, arising out of multiple instances of head trauma together with heavy and chronic polysubstance use from an early age. According to Dr Sinclair, the ABI is permanent and would have been present at the time of the offending. As a result of the ABI, you have moderate to severe cognitive impairment, particularly in the areas of attention, processing speed, and verbal memory. You have impaired executive functioning, characterised by a severe weakness in complex attention and verbal abstract reasoning, as well as reduced capacity to complete a response inhibition task. As a result of your cognitive impairment, according to Dr Sinclair, you are likely to be more disinhibited than others, with your impairment impacting upon your capacity to think clearly and make calm and reasoned decisions and judgments and inhibit automatic responses.
38You have slowed processing and reduced impulse control, meaning that you would be less likely to fully consider the outcome of your actions or alternative ways of managing a situation before acting. According to Dr Sinclair, at the time of some of your offending, the impact of acute intoxication is also likely to have further impacted upon your cognitive functioning. According to Dr Sinclair, you have a significant offending history preceding the head injury in 2017, therefore, 'the ABI alone is unlikely to be entirely accounting for Mr Towers' offending behaviour currently'.[3]
[3]Page 15.
Sentencing factors
39The Sentencing Act requires me to have regard to various factors, principles and purposes when 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 previous character.
40In my view, having regard to the unchallenged opinions of neuropsychologist Dr Kelly Sinclair in her report dated 15 February 2023, your moral culpability for your offending is somewhat reduced due to your impaired mental functioning, in your case an acquired brain injury. However, as Dr Sinclair makes clear, your acquired brain injury does not entirely account for your offending behaviour, given your extensive criminal history and your extensive history with regards to polysubstance use, which it appears was operative at the time of the offending. As I earlier indicated, there is a degree of forethought involved in the attempt to pervert offending, indicating in my view your ability to think through the modus operandi of that particular offending. Your moral culpability for your offending overall remains significant in my view. Furthermore, your impaired mental functioning, in my view, highlights the need for any sentence to reflect the important sentencing principle of community protection. It seems to me at the time of all of your offending, due to your impairments, your behaviour was extremely dangerous and in all the circumstances, the need for community protection remains a significant sentencing purpose in your case.
41You indicated your intention to plead guilty at the committal mention stage with regards to both indictments at an early stage, and your pleas of guilty must therefore be considered early in the proceedings, warranting a sentencing discount. The utilitarian value of your plea is of course enhanced by virtue of the fact that it occurred in the context of the COVID-19 pandemic and its unprecedented challenges to the administration of justice in this state. There is an increased need to encourage those accused who are guilty to so plead, and such encouragement must come from an actual and palpable amelioration of sentence.[4] Furthermore, I accept that through your guilty pleas, you have acknowledged wrongdoing, indicated a willingness to facilitate the course of justice, and saved the community the time and cost of a criminal trial.
[4]DPP v Worboyes [2021] VSCA 196 at paragraph 38.
42I also accept that there is a degree of remorse present in your case. In addition to your plea of guilty, which in and of itself is capable of evidencing remorse, neuropsychologist Dr Sinclair refers to you feeling ashamed for what you have done. According to Dr Sinclair, you expressed remorse for your behaviour. In those circumstances, and in particular having regard to your cognitive impairment, I am satisfied that a further sentencing discount is warranted on the basis of your remorse.
43I am also satisfied that a further sentencing discount is warranted by virtue of the hardship involved in the custodial setting, given your particular circumstances. Generally, I accept that the custodial environment is more onerous now, given the consequences of COVID-19. As is now well known, COVID-19 has adversely impacted upon the custodial setting, triggering restrictions with regards to freedom of movement, access to visits, and access to various therapeutic and employment related activities. Furthermore, there is an understandable anxiety with regard to the incursion of COVID-19 into the custodial setting, given the compromised demographic. Whilst the seriousness and therefore impacts of COVID-19 have fluctuated somewhat in recent times, I accept that your current period of incarceration has occurred in the context of the COVID-19 pandemic, warranting a mitigatory allowance. In your particular case, given your cognitive impairments, according to Dr Sinclair, imprisonment is likely to be more onerous for you compared to age-matched peers without cognitive impairments.[5] You would have more difficulty than others initially adapting to new routines and environments. You are more likely to be susceptible to negative influence of others and may respond impulsively without being able to fully consider the consequences or alternative ways of managing. You will struggle to follow lengthier or more complex verbal instructions. This may make you appear non-compliant and place you at an increased risk of transgressions. You have referred during your assessment with Dr Sinclair, to prison being difficult for you as you get picked on because others think that you are slow. You have self-reported experiences of head strikes due to assaults within the prison environment. You are presenting according to Dr Sinclair with moderate symptoms of depression, anxiety and stress. According to Dr Sinclair, you may be at increased risk of further deterioration in your cognition and mood without support. Given these unchallenged opinions, I am satisfied that a mitigatory allowance is warranted with regards to Verdins principle five, and to a certain extent, Verdins principle six, given your hardships in custody, as a result of your impaired mental functioning.
[5]Page 16.
44In formulating an appropriate sentence in your case, I have had regard to current sentencing practices with regard to each of the charges to which you have pleaded guilty. In that regard, I have read and considered the further written submissions of the prosecution dated 9 May 2023, Exhibit 4 and the cases referred to in those submissions.
45Sentences of other courts of course are not binding precedents, but are merely historical statements of what happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered.[6]
[6]DPP v Dalgliesh (a pseudonym) (2017) HCA 41 at paragraph [83].
46In relation to the offending for which you now fall to be sentenced, I am called upon to denounce your criminal conduct. Given your extensive criminal history and notwithstanding your plea of guilty to these offences, there is a need to specifically deter you from such serious criminality in the future, through the penalties I am about to impose. Given the nature, seriousness, and prevalence of much of your offending, there is a need to reflect the important sentencing purpose of general deterrence. Community protection is also an important sentencing purpose in the circumstances of your case. In my view, the community must be protected from you, and the best way to achieve this is through your incapacitation through a sentence of imprisonment. You also must be justly punished for such serious criminality. Finally, any sentence I impose, must, to the extent appropriate, facilitate your rehabilitation. Given your extensive criminal history, and the nature of your offending, it is difficult to find that your prospects of rehabilitation are anything other than guarded. According to Dr Sinclair, there would need to be significant modification of any rehabilitative therapies given your cognitive impairment. You are clearly in need of significant interventions with regards to your longstanding polysubstance abuse. Given your impairments, your rehabilitative progress is likely to be slow, indeed according to Dr Sinclair your capacity to participate in and progress through rehabilitative therapies, will be slower and you will require significant support in order to do so.[7] Nevertheless, in my view, you would benefit from a significant parole eligibility component to the sentence I am about to impose, to assist in your eventual reintegration into the broader community in a safe and appropriate manner.
[7]Page 17.
47In my view, having considered all of the relevant matters, nothing short of a significant sentence of imprisonment is warranted in your case. As I have previously indicated, there is a need to impose a level of cumulation with regards to the separate and serious aspects of your criminality, subject to the overarching principle of totality, and the need to reflect the important principle of parsimony.
Sentence to be imposed
48Mr Towers, I now come to the portion of my sentencing remarks where I announce the penalties to be imposed.
49With regards to the first indictment, on the charge of theft, you are convicted and sentenced to 12 months' imprisonment.
50On the charge of attempting to pervert the course of justice, you are convicted and sentenced to 18 months' imprisonment.
51On the related summary offence of trespass, you are convicted and sentenced to three months' imprisonment.
52With regards to the second indictment, on the charge of aggravated burglary you are convicted and sentenced to four years and six months' imprisonment. This is the base sentence.
53On the charge of conduct endangering life, you are convicted and sentenced to four years' imprisonment.
54On the charge of possessing a firearm contrary to a firearm prohibition order, you are convicted and sentenced to 18 months' imprisonment.
55On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment.
56I order that three months on the theft charge, nine months on the attempt to pervert charge, 18 months on the conduct endangering life charge, five months on the firearm offence, and one month on the offending on bail charge, be served cumulatively upon each other and cumulatively upon the sentence imposed with regards to the aggravated burglary, making a total effective sentence of seven years and six months imprisonment.
57I order that you serve a period of five years' and six months imprisonment, before becoming eligible for parole.
58Pursuant to s18(4) of the Sentencing Act, I declare a period of 268 days by way of pre‑sentence detention.
59Pursuant to s6AAA of the Sentencing Act, I declare that you had pleaded not guilty, but been found guilty of these offences, I would have imposed a total effective sentence of nine years and six months, with a non-parole period of seven years. There being no ancillary applications in this matter, I make no further orders. Ms Phillips, firstly, any ambiguities with regards to the sentence or have I missed anything?
60MS PHILLIPS: No, that sentence is all correct on my calculations, Your Honour. The only thing I wanted to note was you noted near the beginning that there was no PSD in relation to the first indictment.
61HIS HONOUR: Yes.
62MS PHILLIPS: However, the accused was remanded on that indictment on 18 January. His bail was revoked on that date, so he did have some PSD running alongside the other matter.
63HIS HONOUR: Just bear with me. The prosecution opening refers to there being no pre-sentence detention in relation to that indictment.
64MS PHILLIPS: Yes, I do apologise for that.
65HIS HONOUR: Paragraph 48.
66MS PHILLIPS: Sorry, I'll just - - -
67HIS HONOUR: And there's a chronology which indicates, and I have referred to it in my sentencing remarks that he was originally on summons for that and then bail was imposed at the committal mention when it resolved, and so therefore at paragraph 48, the accused does not have any PSD to be declared in relation to this matter.
68MS PHILLIPS: He was certainly originally on summons. I've just checked the opening now and I think where the issue has come in is perhaps that opening was prepared for a plea hearing that was intended to commence in August of last year.
69HIS HONOUR: Right.
70MS PHILLIPS: However, he was then imprisoned - sorry, his bail was revoked on the first indictment on 18 January this year and it appears the opening was not updated at that time.
71HIS HONOUR: And so does that impact on the total PSD declared?
72MS PHILLIPS: It should not because it ran alongside - - -
73HIS HONOUR: Yes.
74MS PHILLIPS: - - - the second indictment.
75HIS HONOUR: All right. Well I will amend my sentencing remarks when I revise them upon being informed subsequently that bail was revoked on that indictment on 18 January 2023 and so there has been a period in custody in relation to the attempt to pervert indictment, which does not impact upon the overall declaration of 268 days pre-sentence detention.
76MS PHILLIPS: Thank you, Your Honour.
77HIS HONOUR: Yes, thank you.
78MR MORTLEY: The court pleases.
79HIS HONOUR: Nothing from you Mr Mortley?
80MR MORTLEY: No, Your Honour, the maths is correct by my calculations. Nothing further.
81HIS HONOUR: Yes thank you, adjourn the court please.
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