Director of Public Prosecutions v Van Der Wiel
[2024] VCC 1850
•19 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00599,
CR-23-00471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATRINA VAN DER WIEL and ALI IMRAN ARSLAN |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March, 23 July and 16 September 2024 | |
DATE OF SENTENCE: | 19 November 2024 | |
CASE MAY BE CITED AS: | DPP v Van Der Wiel & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1850 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Aggravated burglary – Prohibited person possess an imitation firearm – Common assault – Possession of a drug of dependence – Deal with property suspected of being proceeds of crime – Theft – Victims known to Van Der Wiel who was armed with an imitation firearm at the time of entry – Arslan came to be in possession of a jemmy bar having entered – The offenders entered with an intention to steal – No forced entry made and no attempt to disguise identity – Van Der Wiel suffered a traumatic and disadvantaged background and has a complex psychological makeup – She requires intensive and ongoing support necessary to enhance prospects of rehabilitation – Relatively early pleas of guilty by both offenders – Limited criminal histories however, Arslan has a more relevant prior history and, unlike Van Der Wiel, has served a term of imprisonment – He was also on a Community Correction Order at the time of this offending.
Legislation Cited: Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Rv Verdins (2007)16 VR 269.
Sentence: Both offenders sentenced to 11 months’ imprisonment followed by an 18 month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Van Dyk (Plea – 26 March 2024) Ms L Zubreckyj (Plea – 23 July and 16 September 2024) Ms H Psomoulis (Sentence) | Office of Public Prosecutions |
| For the Accused Van Der Wiel For the Accused Arslan | Ms S Locke Ms I Siriwardana | James Dowsley & Associates Pty Ltd Victoria Legal Aid |
HIS HONOUR:
Introduction
1Katrina Van Der Wiel, you have pleaded guilty to the following five charges on Indictment No. C2215608.1:
(a) Charge 1 – aggravated burglary, contrary to s 77 of the Crimes Act 1958.
(b) Charge 3 – prohibited person possess an imitation firearm, contrary to s 5AB(2) of the Control of Weapons Act 1990.
(c) Charge 4 – common assault contrary to Common Law.
(d) Charges 7 and 8 – possession of a drug of dependence, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
2You have also consented to this Court hearing and pleaded guilty to the summary offence of deal with property suspected of being proceeds of crime, contrary to s 195 of the Crimes Act.
3Ali Arslan, on the same indictment, you have pleaded guilty to the following three charges:
(a) Charge 2 – aggravated burglary, contrary to s 77 of the Crimes Act.
(b) Charge 5 – common assault contrary to Common Law.
(c) Charge 6 – theft, contrary to s 74(1) of the Crimes Act.
4Aggravated burglary carries a maximum penalty of 25 years’ imprisonment. Prohibited person possess an imitation firearm carries a maximum penalty of 10 years’ imprisonment. Common assault carries a maximum penalty of 5 years’ imprisonment. Theft carries a maximum penalty of 10 years’ imprisonment. Possession of a drug of dependence (Charge 7) carries a maximum penalty of 1 year imprisonment and/or 30 penalty units. Charge 8 carries a maximum penalty of 5 penalty units. The summary charge of deal with property suspected of being proceeds of crime carries a maximum penalty of 2 years’ imprisonment.
Circumstances of the offending
5The victims, Peter Gibbons, and his son, Christopher Gibbons resided in a two story townhouse in St Kilda. You, Van Der Wiel, knew the victims and lived with them at the address approximately nine months prior to the incident.
6On 23 August 2022, you, Van Der Wiel, sent a series of text messages to Peter Gibbons, asserting that he owed you money. The messages included the following:
If u r not back to pay me back what u owe. If u keep fucking me around, u know the rest
U have fucked me over incredibly today. Thank you for that. Thanks for taking them from me again. Consequences.
The only thing u can make right, is pay me what you owe. Tick tock.
7The following day at approximately 8:30 am, both of you attended the victims’ home. The victims, Peter Gibbons, Christopher Gibbons and Christopher Gibbons’ girlfriend, were asleep.
8You, Van Der Wiel, entered the house via an un-locked rear window located next to the rear door. At the time of entry, you were armed with an imitation handgun. You were a prohibited person within the meaning of the Firearms Act 1996.[1]
[1]Charge 3.
9You, Arslan, then entered, either via the same window, or via the rear door, which you, Van Der Wiel, unlocked.
10Both of you entered the house, intending to steal and knowing that a person would be present inside.[2]
[2]Charges 1 and 2.
11Peter Gibbons woke up to noises and left his bedroom. He told his son and his son’s girlfriend that he thought they were being robbed. You, Van Der Wiel, went up the stairs towards Peter Gibbons carrying the imitation firearm in your right hand and demanding money. As you reached the top of the stairs, you said, referring to the firearm, ‘do you know what this is?’ You then uttered words to the effect ‘your fucked, I’m gonna kill you if you don’t get what I want.’ You added, ‘I know you got paid on Monday, so I know you have cash’. Peter Gibbons replied that he had spent the money on bills. You said, ‘this is out of my hands, I have to hurt you’.
12Christopher Gibbons, who was in his bedroom, could hear you yelling at his father. You then began to assault Peter Gibbons, by striking him to his head and face approximately 30 times with the imitation firearm and your fist. As you pushed him into his bedroom, you demanded that he get his wallet and open his safe. Peter Gibbons refused, and you continued to hit him.[3]
[3]Charge 4.
13Christopher Gibbons and his girlfriend were in bed and were scared to leave the bedroom. At this point, you, Arslan, whilst armed with a jemmy bar, entered Christopher Gibbons’ bedroom. You began talking to Christopher Gibbons, ‘having a go’ at him whilst armed with the jemmy bar. This placed Christopher Gibbons in fear of being assaulted.[4]
[4]Charge 5.
14You, Van Der Wiel, then entered Christopher Gibbons’ bedroom. You tried to stop Arslan by standing in front of him and pointing the firearm at him. You said, ‘not him, not him’ and threatened to shoot Arslan if he did not leave Christopher Gibbons alone. You told Christopher Gibbons and his girlfriend not to call the police, before leaving the bedroom.
15Having left the bedroom, you, Van Der Wiel, began struggling with Peter Gibbons and pushed him into the linen cupboard, causing the cupboard to break.[5]
[5]Continuation of Charge 4.
16Peter Gibbons managed to push past you, before running down the stairs and leaving the house. He ran to a nearby petrol station where he called triple 000 requesting police.
17You, Arslan, went back into Christopher Gibbons’ bedroom and said ‘When you get addicted to drugs, this stuff happens’. You tried to shake Christopher Gibbons’ hand before leaving his bedroom.
18Around this time, you, Van Der Wiel, left the address. You, Arslan, returned to the ground floor, collected Peter Gibbons’ empty backpack, filling it with a variety of household items, including Peter Gibbons’ mobile phone and left.[6]
[6]Charge 6.
19Police arrived at the address as you, Arslan, were leaving. You lied to the police, telling them that you were friends with the victims and were called by the son to help out. You were arrested and taken to St Kilda police station.
20In the formal police interview, you told the police that the victim, Peter Gibbons, owed Van Der Wiel a lot of money. You knew of the situation and went to the house so that it did not get out of hand. You stated that you grabbed a jemmy bar off Van Der Wiel once inside the house. You spoke to Christopher Gibbons and took the backpack filled with the victim’s belongings and placed it outside the front of the door.
21At the conclusion of the interview, you were charged and remanded in custody. You remained in custody until being granted bail on 22 November 2022.
22You, Van Der Wiel, were located by a security guard in the toilets at Box Hill shopping centre at approximately 10 am on the same day. You appeared to have overdosed.
23Paramedics attended and took over your care. During the search of your bag in order to obtain identification, a paramedic observed the imitation firearm. Police were called and attended a short time later. A further search of your bag located several zip lock bags containing 9 tablets of diazepam,[7] one Listerine bottle containing approximately 429 grams of 4-hydroxybutanoic acid,[8] a zip lock bag containing approximately 14 grams of cannabis[9] and a Victorian driver’s licence in the name of Maurice Morales.[10]
[7]Part of Charge 7.
[8]Part of Charge 7.
[9]Charge 8.
[10]Summary Charge 1.
24You were transported to Box Hill Hospital under police guard. You were discharged into police custody on 25 August 2022 and transported to St Kilda police station. You exercised your right to silence in the formal police interview. You were charged and remanded in custody. You were released on bail on 19 October 2022.
Criminal history – Van Der Wiel
25You have a limited criminal history. In terms of matters that are relevant, you were sentenced to an adjourned undertaking without conviction in March 2017 for an offence of unlawful assault and attempted shop theft. In 2018, you were sentenced to a dismissal for possession of a controlled weapon without excuse. You have another shop theft matter in 2019 for which you were fined.[11] Your last appearance is for an offence of affray and unlawful assault on 20 December 2021 in respect of which you were convicted and fined.
[11]Along with other driving matters.
26This is your first appearance before the County Court. You have never been sentenced to a term of imprisonment or a Community Correction Order (‘CCO’).
27I was told that you have a pending matter of recklessly causing injury before the Magistrates’ Court. That offence occurred on 6 January 2024 and you intend to plead guilty.
Criminal history – Arslan
28Your criminal history is also fairly limited but relevant. This is also your first appearance in this court.
29In 2013, you were fined without conviction for an offence of assault in company. Your next appearance was some eight years later, when in 2021, you were placed on a 12 month CCO with conviction for two offences of possess methylamphetamine, two offences of burglary, two offences of commit indictable offence on bail, and offences of criminal damage and possess prohibited weapon without exemption or approval. On 19 July 2022, you were dealt with for contravening the CCO and re-sentenced to an aggregate term of 30 days’ imprisonment. In addition, on the same day you were sentenced to an aggregate term of 60 days’ imprisonment in combination with an 18 month CCO for new offending, including unlawful assault and possess a drug of dependence.
30The offending for which you fall to be sentenced occurred very shortly upon your release and while you were subject to a CCO.
Personal circumstances – Van Der Wiel
31Katrina Van Der Wiel, you are now 39 years old. You were born in Melbourne and have an older sister and a younger brother. The family moved to Queensland when you were three years old. You reported having a good relationship with your father. When you were around the age of eight, your mother brought you back to Melbourne. Your father, who remained in Queensland, passed away when you were aged eight or nine years old. Your mother told you that he died of an overdose.
32You have endured a difficult background involving family violence and homelessness. The family violence included both physical and sexual abuse. The violence was inflicted upon you by your mother, sister and step grandfather.
33You fell pregnant at a young age, giving birth to your eldest son who is now aged 21.
34You attended a number of different schools. You were suspended and expelled on multiple occasions and left school during Year 12.
35You left the family home at the age of 14 and slept at train stations. You have struggled with maintaining stable housing and have endured periods of homelessness.
36You commenced abusing illicit substances at a young age. You experimented with a range of drugs during your adolescence including cannabis, ecstasy and amphetamine. However, you have primarily abused heroin, including multiple overdoses. You told Ms Bovenkerk that heroin helped to numb your emotional experiences and thoughts of the trauma you have endured. At the time of the plea hearing, you were prescribed methadone to treat your opioid dependency.
37In addition to your eldest son, you have a second son and a daughter. Your second son was born during a long term relationship with his father that commenced when you were around 25 years old. This relationship was marred by a significant level of family violence which involved you making several reports to the police. While the relationship has ended, you remain fearful of your second son’s father.
38You currently enjoy a supportive relationship with the father of your youngest child. You met your current partner in 2019. Your daughter was born in August 2023 and is only one year old. She resides with your partner and his parents. Prior to your most recent remand, you had supervised contact with her three days a week. Your partner works three days a week installing pool fences. Apart from some minor drug use in a social setting, he has no issues with substance abuse.
Personal circumstances - Arslan
39Ali Arslan, you are now 38 years old. You were born in Melbourne and are of Turkish heritage. You lived with your parents and two siblings until your parents separated when you were six years old. You were the only child in your mother’s care and were separated from your siblings. Your mother worked as a cleaner to supplement the limited government assistance. You lived in and around Carlton in units funded through the Department of Housing and Human Services. You recall witnessing violence, including a suicide while living in Carlton.
40Your father re-partnered and you have a half-brother who is in his mid-twenties.
41You moved with your mother interstate, to New South Wales and Queensland. Your transient life, which lasted a number of years, led to you attending some eight to ten primary schools across three states and the inability to form any meaningful friendships.
42You moved back to Victoria around the age of 17 and lived with your father. You completed Year 11 in a college in Glenroy. Having left school, you were employed on a casual basis at various businesses, including working at The Age newspaper factory and at various warehouses.
43You started your own labour hire business trading as AIA Services at the age of 27. Initially, the business offered labour hire services to farms in Queensland. The nature of the business changed after several years. It provided a service, primarily in Victoria, to demolish residential buildings and clear sites for new builds. The business progressed well and you were able to grow it.
44You have had one significant relationship that commenced around 2014. You have a daughter from this relationship who was born in March 2016. However, your marriage ended in 2017, and your partner took sole custody of your daughter. Prior to international borders closing in Australia, due to the pandemic, your former partner left for Turkey taking your daughter. You have had no contact with your daughter since then which has caused you immense distress.
45After your marriage ended, your commitment to your business waivered and your financial circumstances worsened. Your former wife and her sister had taken personal loans out against your name. You continued paying their debts. As a result of the pandemic, you lost access to regular work and your business folded. You were unable to pay for your rental property. At this period, you returned to using drugs.
46You maintain a good relationship with your parents and siblings. Prior to your most recent remand, you were living with your mother and older brother.
Gravity of the offending
47The offence of aggravated burglary carries a maximum penalty of 25 years’ imprisonment. That should make clear to both of you the seriousness with which Parliament views this offence.
48You invaded the safe sanctity, the home of your victims, where they were entitled to feel safe. It occurred in company, in the early morning when the victims were asleep.
49There is no dispute that you, Van Der Wiel, were the primary offender. Unlike you, Arslan did not know the victims. It was a perceived grievance you had, whether it be a perceived debt owed or revenge or a combination of both. You happened to meet Arslan on the morning of the offending in the context of being present in an area where drugs were being used. You struck up a conversation and told him that the primary victim owed you money. Foolishly, you Arslan, agreed to go with her to the victim’s house.
50You, Arslan, were neither armed upon entry nor had any knowledge of the imitation firearm. The offence of aggravated burglary against you is alleged only on the basis of your knowledge that a person was present. It is not alleged that you were aware of the presence of children, namely Mr Gibbons’ son and his girlfriend, when you entered the house.
51I bear in mind that in entering the house, the intent was to steal, and no damage was occasioned to the house in order to effect entry. The offending was unsophisticated. It involved no attempt to disguise your identities.
52Once inside the house, both of you committed the offence of common assault. I accept that the offence committed by you, Arslan, was of a lower level of seriousness. However, you entered the young victim’s bedroom holding a jemmy bar. Seeing an armed stranger in their room in the morning when they were in bed would have been a particularly frightening experience. I note you, Van Der Wiel, discouraged Arslan from any offending directed against Christoper Gibbons and his girlfriend. You, Arslan, apologised to your victim before leaving.
53The assault perpetrated by you, Van Der Wiel, against Peter Gibbons, was of a more sustained nature and involved repeated blows.
54While there are no victim impact statements, it is clear that the victims would have been frightened by your entry comprising the aggravated burglary, and the further offending in the house. Christoper Gibbons in his police statement states ‘…I felt really scared while they were in the house. I was in shock…’
55At the time of this offending, you, Arslan, were subject to a CCO. That is an aggravating factor of your offending. You had only been released from prison about a month before this offending.
Defence submissions – Van Der Wiel
56In addition to oral submissions, your counsel, Ms Locke, relied upon written plea submissions dated 22 July 2024.[12] Also tendered were the following documents:
(a) A psychological report prepared by Ms Marlese Bovenkerk dated 3 June 2024.[13]
(b) A further supplementary psychological report prepared by Ms Marlese Bovenkerk dated 30 August 2024.[14]
(c) A letter from Anglicare Victoria written by Wayne Parkin dated 22 July 2024.[15]
(d) A bundle of 12 Court Integrated Services Program (‘CISP’) reports.[16]
(e) An Australian Community Support Organisation report dated 10 March 2024.[17]
(f) A bundle of seven certificates confirming completion of courses in custody.[18]
(g) A summary of the pending matter before the Magistrates’ Court committed on 6 January 2024.[19]
(h) A further certificate relating to a Depression and Anxiety Program completed in custody.[20]
(i) Two urine screens dated 6 August and 24 August 2024.[21]
[12]Exhibit V1.
[13]Exhibit V2.
[14]Exhibit V8.
[15]Exhibit V3 (last sentence of the letter was not relied upon).
[16]Exhibit V4.
[17]Exhibit V5.
[18]Exhibit V6.
[19]Exhibit V7.
[20]Exhibit V9.
[21]Exhibit V10.
57I have had regard to all these documents.
58Your matter resolved following a case assessment hearing before me. While your matter was listed for a contested committal in the Magistrates’ Court, ultimately, no witnesses were cross-examined. I accept that your plea is a relatively early one. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and expense of a trial and spared your victims the anxiety of having to give evidence.
59I am prepared to accept that by pleading guilty you are, to a limited extent, remorseful for your offending. I note that you have expressed some remorse to Ms Bovenkerk in your most recent engagement with her.[22] However, that remorse is directed towards Christopher Gibbons and his girlfriend.
[22]Exhibit V8 [38] –[39].
60I accept that your disadvantaged and traumatic background has had a significant detrimental impact upon you. The principle in Bugmy[23] has application in a general sense and reduces your moral culpability. In her report, Ms Bovenkerk states[24]:
Ms Van Der Wiel emanates from a dysfunctional childhood and family environment in which she experienced family violence, instability, and alleged physical and sexual abuse, and left the family home at 14 years of age. As an adult, she has entered into relationships marred by significant family violence, perpetuating a cycle of re-traumatisation and cumulative harm.
Trauma and/or invalidating early environments such as those that Ms Van Der Wiel experienced during critical periods of her childhood and adolescence adversely affected her overall development, identity formation, self-esteem and personality development, general functioning, and interpersonal relationships. The empirical literature has consistently demonstrated that trauma experienced during childhood can have long-lasting negative impacts on an individual’s psychological, behavioural, and social functioning. Child abuse and maltreatment are common risk factors for posttraumatic stress, aggression, and antisocial behaviour.
It is opined that Ms Van Der Wiel’s early childhood experiences significantly disrupted her capacity to form secure attachments and healthy, respectful relationships in adulthood. She was raised in an environment where she experienced a lack of safety, poor responsiveness to her needs, indifference, dismissiveness, limited emotional support or affection, and the absence of parental supervision, guidance, and/or boundaries, contributing to the development of rejection and abandonment schemas.
[23]Bugmy v The Queen (2013) 249 CLR 571.
[24]Exhibit V2 [137] – [139].
61Following your arrest, you spent 55 days in custody before being granted bail on 19 October 2022. This was your first experience of incarceration. During this period, you completed a number of courses as confirmed by the seven certificates.
62Apart from spending some 26 days in custody at the start of this year in respect of your pending matter in the court below, you have remained on bail, until I remanded you back into custody on 23 July 2024. During the significant period of some 20 months on bail, you have undertaken some counselling in respect of your drug use and you have been subject to CISP. While you have continued to abuse illicit substances, you have been on the methadone program. You have also given birth to a daughter.
63You re-offended on a single occasion on 6 January 2024. This matter has resolved to a charge of recklessly causing injury and will be finalised shortly.
64During your most recent period on remand, you have provided negative urine screens. You have completed a six hour Depression and Anxiety program. You have been attending a Christian church group and meditation classes and working in the horticulture team. You have maintained regular phone contact with your partner.
65You are prescribed and are currently taking anti-depressant medication to help you sleep and to assist with nightmares. You have been seen by psychiatric nurses and have put in a request to see a psychiatrist.
66You have found it difficult not having regular contact with your very young daughter, which you enjoyed whilst on bail. I accept that separation is making your time in custody to some extent more burdensome.
Psychological assessment by Ms Bovenkerk
67I note that you are not a particularly reliable historian and it has been difficult to obtain cogent instructions. Having said that, I am prepared to act on Ms Bovenkerk’s findings in her comprehensive assessment of you.
68Overall, MCMI-IV[25] results revealed evidence of significant psychopathology, particularly depression, anxiety, trauma, drug use (likely a form of coping in an attempt to reduce her trauma symptoms) and underlying personality vulnerabilities.
[25]Millon Clinical Multiaxial Inventory-IV.
69Ms Bovenkerk has made a provisional diagnosis of Complex Post Traumatic Stress Disorder and Opioid Use Disorder on maintenance therapy. There is evidence of Borderline Personality Disorder but most likely it is reflective of a complex trauma history.[26]
[26]Exhibit 2 [86] – [120].
70In respect of Post Traumatic Stress Disorder, Ms Bovenkerk states[27]:
Ms Van Der Wiel presents with a number of core features of Post Traumatic Stress Disorder (PTSD) including avoidance and numbing, increased arousal as evidenced by poor concentration and memory, irritability and anger, difficulty sleeping, and hypervigilance. In addition to these symptoms, she also exhibits impaired emotional control; self-destructive and impulsive behaviour; and impaired relationships with others, which are also common manifestations of trauma.
Individuals with PTSD experience intrusive symptoms, avoidance, negative cognitions and mood, and hyperarousal symptoms in response to traumatic events or situations in which they are triggered, experience high levels of stress or feel unsafe or threatened. Symptoms can fluctuate in intensity and frequency, however, are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use.
[27]Ibid [140] – [141].
71Ms Bovenkerk assesses your risk of general reoffending as high. This risk is not necessarily commensurable to your risk of future violence which has not been assessed.[28]
[28]Ibid [122] – [129].
72Ms Bovenkerk, unsurprisingly, opines that you require intensive and ongoing support and supervision to promote abstinence from illicit drugs, adherence to psychological and pharmacological treatment, and access to positive, pro social supports in order to improve your prospects of rehabilitation.[29]
[29]Ibid [150].
73Whilst your unstable personal circumstances are a barrier to meeting your future goals, Ms Bovenkerk states that it is imperative that your poor mental state is addressed and that you engage in treatment to avoid further decompensation of your mental health.[30]
[30]Ibid [151].
74I add that I have taken into account all of the contents of Ms Bovenkerk’s detailed report, as well as her recommendations set out in paragraphs 153 to 164.
75Although Ms Locke disavowed any reliance on Limbs 1, 3 and 4 of Verdins[31] as originally submitted in the written submissions, she maintained that limb 5 had application. I accept that your time in custody as result of your complex psychological make up, including PTSD, may mean that imprisonment will weigh more heavily upon you than it would on a person in normal health. In her report, Ms Bovenkerk states:[32]
…imprisonment would likely weigh more heavily on Ms Van Der Wiel than a person without her conditions. In individuals with a history of trauma, depression, and anxiety, there is the potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate Ms Van Der Wiel’s symptom profile. Given her personality vulnerabilities and psychiatric profile, Ms Van Der Wiel is considered at higher risk of inappropriate or disproportionate responses, unintentional sanctions, and higher vulnerability to experiencing issues with other offenders due to emotional dysregulation and impulse control issues.
[31]Rv Verdins (2007)16 VR 269 (‘Verdins’).
[32]Exhibit V2 [153].
76In line with what Ms Bovenkerk has stated here, in your recent consultation, you told Ms Bovenkerk that you have recently experienced an incident where you allege inappropriate touching by another prisoner. The incident left you feeling scared and fearful and triggered memories of past trauma. You were placed in lockdown due to concerns you may have been suicidal.[33]
[33]Exhibit V8 [24] – [25].
77I bear in mind your complex psychological make up stemming from childhood traumas.
78I acknowledge that the path to recovery is not going to be easy. Intensive support is absolutely necessary in order to enhance your prospects of rehabilitation.
79You have a goal to raise your daughter with your partner as a stable family unit and to eventually regain the custody of your youngest son. That is an admirable goal to have but it will involve some real determination on your part to address your drug addiction and seek appropriate mental health support. The abstinence that you are currently experiencing from illicit drug use during this first period of custody needs to be maintained when you are back in the community.
80You have the support of your partner who wants to see you address your issues before becoming a part of your daughter’s life.
81Your criminal history commences at the age of 31. Therefore, you are capable of remaining in the community without resorting to crime.
Defence submissions – Ali Arslan
82Ms Siriwardana, who appeared on your behalf, filed written plea submissions dated 25 March 2024.[34] Also filed was a psychological report prepared by Ms Carla Lechner dated 30 January 2024,[35] and three character references.[36]
[34]Exhibit A1.
[35]Exhibit A2.
[36]Exhibit A3 (Three references, all dated 18 March 2024 prepared by Yesim Korkmaz, Seher Arslan and Turker Arslan).
83Your matter also resolved following a case assessment hearing before me. I accept that your plea is a relatively early one.[37] By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and cost of a trial and spared your victims the anxiety of having to give evidence in this court.
[37]While there was a contested committal where all three victims were cross-examined, the cross-examination was confined and aided in the resolution of the matter in the manner now before me.
84Your plea of guilty is indicative of remorse. I note that Christopher Gibbons in his police statement states:
The guy came into my room again to try and apologise to me. He was saying like, something about how “When you get addicted to drugs, this stuff happens”. He then asked Lea and I if we did drugs, we just didn’t respond. Lea started crying at this point. I’m not sure why he was talking about drugs. He was trying to shake my hand a few times and then he walked out.[38]
[38]In her police statement, Cathlea Connellan states that Mr Arslan ‘came [into the bedroom] and said it was fine and that he has a drug problem too. I'm not sure if he was referencing Chris' dad but he was trying to be nice and was fist bumping Chris.’
85You also expressed your remorse to Ms Lechner. You told her that any dispute between your co-accused and the victim was ‘none of my business’. She noted that you were deeply regretful of your actions and understood that it was the wrong thing to do.
Ms Lechner’s assessment
86Ms Lechner noted the following pertinent matters:
(a) Although not formally assessed, you presented as being of low average intelligence.
(b) She made a provisional diagnosis of Adult Attention Deficit Hyperactivity Disorder (ADHD),[39] stating that you have poor information processing skills, and are inclined to act impulsively without considering the full consequences. Ms Lechner recommended that you be further assessed by a psychiatrist specialising in this field.
(c) Ms Lechner also diagnosed you with Adjustment Disorder with Depression. However, the symptoms were not quite at the level to make a diagnosis of Major Depressive Disorder.
(d) You present with symptoms of Stimulant Use Disorder in early remission.
[39]Mr Arslan has never been assessed for ADHD.
87However, in regard to the Stimulant Use Disorder in early remission, I note that you informed Ms Lechner that you were largely abstinent from drug use. Your counsel, Ms Siriwardana, conceded at the return of the plea hearing on 16 September 2024, that in fact you continued to utilise drugs following the offending, including 0.5 grams of ice per week. Accordingly, she disavowed reliance upon paragraphs 26 and 38 of her written submissions.
88Following your arrest and charge on 24 August 2022, you were remanded in custody. You were granted bail on 22 November 2022. You remained on bail until I remanded you in custody on 23 July 2024. During the 20 months whilst on bail, you resided with your mother and younger brother. The references from your family members indicate that unlike before when you remained isolated, you have made a conscious effort to involve yourself with the family and partake in family gatherings. You have been assisting your mother, who is on a disability pension, with chores around the house as well as taking her to medical appointments and shopping. Importantly, you have not reoffended in any way.
89Despite your reluctance to engage in drug treatment during your last CCO, in your more recent assessment, you indicated that you would now like to partake in treatment, recognising that your drug use is the main issue when it comes to your offending.
90I was told by Ms Siriwardana that during your recent remand in custody, you have been attending Narcotics Anonymous once a fortnight. You have undertaken three urine screens which have all been negative.[40] You have also been attending Alcoholics Anonymous. You worked as a billet in your unit. You have completed a number of courses in civil construction, skills for work and vocational pathways, and kitchen operations.[41]
[40] Urine screen dated 15 August 2024 (Exhibit A4).
[41]Three certificates of vocational training dated 19 September 2024 and three certificates of participation in alcoholics and narcotics anonymous at Fulham Correctional Centre dated 10 and 24 October 14 November 2024 (Exhibit A5).
91I accept that you have demonstrated a capacity to lead a law-abiding and hard-working life. Circumstances later in your life, including separation from your partner and the collapse of your business, led to you abusing drugs and embroiling yourself in criminal activity.
92I am going to give you a further opportunity to aid your rehabilitation, particularly in respect of your drug use and mental health issues. I hope that on this occasion, you take advantage of the assistance. If you do not, then further opportunities are unlikely to arise.
Parity
93In sentencing you, I am required to bear in mind the question of parity. That is particularly so in respect of the aggravated burglary. As I stated earlier, you, Van Der Wiel, were the primary offender and the one who knew your victims and had a perceived grievance with Peter Gibbons. You have pleaded guilty to aggravated burglary on the basis of entering while armed with an imitation firearm as well as while persons were present. Arslan’s plea is based only on being aware of a person being present.
94However, you, Arslan, have a more relevant criminal history, including two offences of burglary. You committed the offending while subject to a CCO. Unlike Van Der Wiel, you have served a term of imprisonment as well as being subject to CCOs.
95Ultimately, I see no reason to distinguish between the two of you in respect of the common charge of aggravated burglary.
Prosecution submissions
96On behalf of the prosecution, Ms Zubreckyj submitted that a term of imprisonment involving a non-parole period was appropriate for both of you.
97She accepted that you each pleaded guilty at an early stage and have expressed appropriate remorse.[42] Despite your difficult background, she conceded that you, Arslan, have displayed a strong work ethic and have strong family support.
[42]Remorse expressed by Van Der Wiel is at a more limited level as submitted by the prosecution.
98She conceded that the offending was not sophisticated. No attempt was made to disguise identity.
99In respect of you, Arslan, it is not alleged that at the point of entry, you were aware of the imitation firearm or aware of the presence of Mr Gibbons’ son and girlfriend in the house. In respect of the common law assault, Ms Zubreckyj conceded it fell towards the lower end.
100In respect of both of you, it was accepted that despite the importance of general and specific deterrence, denunciation and protection of the community, your rehabilitation also loomed large.
Sentencing – Van Der Wiel
101Having taken into consideration all relevant matters and circumstances, I sentence you, Katrina Van Der Wiel, as follows:
· On Charge 1, you are convicted and sentenced to 10 months’ imprisonment.
· On Charge 3, you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 4, you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 8, you are convicted and sentenced to a financial penalty of $150.
102The sentence on Charge 1 will be the base sentence. One month of the sentence on Charge 4 will run cumulatively upon the base sentence. The sentence on Charge 3 will run concurrently. Accordingly, the total effective sentence is one of 11 months’ imprisonment.
103On summary charge 1 you will be convicted and sentenced to a financial penalty of $500.
104In addition, on charges 1, 3 ,4 and 7, you will be convicted and sentenced to a CCO for a period of 18 months commencing upon your release.
105Every CCO has core conditions that you must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days of your release.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
106In addition to the mandatory core conditions, the CCO will also include the following special conditions:
· First, you will have to perform 150 hours of unpaid community work as directed.
· Second, you must undergo any mental health assessment and treatment as directed.
· Third, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Fourth, you must undergo assessment and engage in suitable programs to reduce your risk of re-offending.
· Fifth, you will be subject to supervision as directed for the duration of the CCO.
107Pursuant to s48CA(2) of the Sentencing Act 1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
108You must report to Dandenong Community Correctional Services within two working days following your release from prison.
109You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the mandatory or special conditions, then you could be charged with the offence of breaching the order.
110The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent back to prison.
111HIS HONOUR: So, there are serious consequences attached to any breach. Do you understand that, Ms Van Der Wiel?
112VAN DER WIEL: Yes, your Honour.
113HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
114VAN DER WIEL: Yes I do, your Honour.
115HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where an accused is appearing by way of an audio-visual link.
Pre-sentence detention
116Pursuant to s 18 of the Sentencing Act, the period of 175 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration
117Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.
Sentencing – Ali Arslan
118Having taken into consideration all relevant matters and circumstances, I sentence you, Ali Arslan, as follows:
· On Charge 2, you are convicted and sentenced to 10 months’ imprisonment.
· On Charge 5, you are convicted and sentenced to 4 months’ imprisonment.
· On Charge 6, you are convicted and sentenced to 2 months’ imprisonment.
119The sentence on Charge 2 will be the base sentence. One month of the sentence on Charge 5 will run cumulatively upon the base sentence. The sentence on Charge 6 will run concurrently. Accordingly, the total effective sentence is one of 11 months’ imprisonment.
120In addition, on Charge 2, 5 and 6, you will be sentenced to a CCO for a period of 18 months commencing upon your release.
121As I have already explained when dealing with Van Der Wiel, you are also subject to the core conditions of the CCO that you must comply with.
122In addition to the mandatory core conditions, the CCO will also include the following special conditions:
· First, you will have to perform 150 hours of unpaid community work as directed.
· Second, you must undergo any mental health assessment and treatment as directed.
· Third, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Fourth, you must undergo assessment and engage in suitable programs to reduce your risk of re-offending.
· Fifth, you will be subject to supervision as directed for the duration of the CCO.
123Pursuant to s48CA(2) of the Sentencing Act, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
124You must report to Coolaroo Community Correctional Services within two working days following your release from prison.
125You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the mandatory or special conditions, then you could be charged with the offence of breaching the order.
126The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent back to prison.
127HIS HONOUR: So, there are serious consequences attached to any breach. Do you understand that, Mr Arslan?
128ARSLAN: Yes, your Honour.
129HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
130ARSLAN: Yes, your Honour.
131HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where an accused is appearing by way of an audio-visual link.
Pre-sentence detention - Arslan
132Pursuant to s 18 of the Sentencing Act, the period of 210 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration - Arslan
133Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.
Other orders
134I grant the two disposal orders sought by the prosecution.[43]
[43]Not opposed by the defence.
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