Director of Public Prosecutions v Vigilante
[2017] VCC 1727
•20 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-00563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON VIGILANTE |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 August and 9 October 2017 respectively |
| DATE OF SENTENCE: | 20 November 2017 |
| CASE MAY BE CITED AS: | DPP v Vigilante |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1727 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Aggravated burglary – Common law assault – Intentionally damaging property – Summary offence of being drunk and disorderly – Alcohol fuelled offending – Limited criminal history – History of major depressive illness and anxiety – History of past stroke with consequential memory loss, left sided weakness and fatigue
Cases Cited:Hogarth v The Queen [2012] VSCA 302; Boulton & Ors v The Queen 46 VR 308; DPP V Dalgleish (a pseudonym) [2017] HCA 41 and R v Verdins (2007) 16 VR 269.
Sentence:Convicted and sentenced to Total Effective Sentence of 3 years’ imprisonment with a non-parole period of 15 months’ imprisonment – No pre-sentence detention declared - s. 6 AAA Sentencing Act 1991 declaration – Ancillary orders of Disposal, Forensic Sample and Compensation
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Lenthall | Solicitor for Public Prosecutions |
| For the Accused | Ms C. Hollingworth | Paul Vale Criminal Law |
HER HONOUR:
1Simon Craig Vigilante, you have pleaded guilty to one charge each of aggravated burglary, common law assault and intentionally damaging property, as well as to the summary charge of being drunk and disorderly.
2The maximum penalty for Charge 1- that is aggravated burglary, is 25 years’ imprisonment; for Charge 2, common law assault, five years’ imprisonment; and for Charge 3, intentionally damaging property, ten years’ imprisonment. The maximum penalty for the summary offence is three days’ imprisonment or 20 penalty units.
3I must factor in the maximum penalties when sentencing you and I have done so. The maximum penalties reflect the seriousness with which Parliament regards each of the offences. In particular, aggravated burglary is regarded as a most serious offence.
4By way of background, I was told that, at the relevant time, you were in
a relationship with Ms Jodie Eklom, who is the former wife of the victim in this matter, Mr Robert Eklom. Their marriage ended in 2012 and there are three children of that union, all of whom were living with the victim at the time of the offending. Your relationship with Ms Eklom endures and she is supportive of you.Offending
5In relation to the offending, I was told that on Tuesday 27 December 2016, you attended the Boxing Day test match at the MCG with a friend. At the end of the match, which I understand was rained out, you went to a hotel in Berwick, where you continued to drink.
6At some stage, you called Ms Eklom and asked her to pick you up. On the way home, you thought that Ms Eklom was intoxicated and should not be driving the car. You then became angry, blaming the victim for destroying Ms Eklom’s life and causing her to abuse alcohol.
7You made your way to the victim’s house in Cranbourne North. You arrived at the address just before midnight and armed yourself with two large rocks.[1] You entered the victim’s house through the front door. The fly screen was not locked.
[1]Exhibit 1 (p.65)
8Three of the victim’s children, Liam, who was 23 years of age, Layla, who was 17 years and Tamsin, who was 15 years old, were all at home.
9Once inside the house, you stormed up the hallway into the living area and yelled, “Where is he?” Liam and Layla were sitting on the couch watching television.[2]
[2]Statement of Layla Ekolm (p.33)
10The victim heard the yelling and exited his bedroom. You were standing in the kitchen at this stage and threw one of the rocks towards the victim.
11The victim moved out of the way to avoid being hit. The rock was thrown with such force that it caused a large hole in the plaster wall of the house.[3]
[3]Photographs (pp.119-121, 171-172)
12The victim pushed you into the kitchen and onto the ground.
13Liam got up and saw that you had the victim in a headlock. He grabbed you from the back, trying to get you away from his father.
14You started yelling, “I’m going to kill you, I am sick of it, I’ve had enough”.
15The victim and Liam managed to push you up the hallway and out the front door.
16As this was happening, Layla ran to Tamsin’s bedroom and told her to call the police. Tamsin then ran down the hallway and through the front door to go to the neighbours.
17You continued to yell from the outside, saying, “Come outside, I’ll bash the fuck out of you”. You collected another rock and threw it through the front window.[4] The rock landed on the desk in the victim’s bedroom.[5]
[4]Photographs (pp.114-117, 164-167)
[5]Photographs (p.67, 124-125, 146)
18You than picked up another rock and used it to smash the front windscreen of the victim’s vehicle parked in the driveway. You smashed the passenger window and the window on the rear canopy, bent the UHF aerial on the front of the vehicle and broke the letterbox. [6]
[6]Photographs (pp.69, 93-102, 147-163)
19Police arrived a short time later and you were arrested some 50 meters away from the house. You continued to make threats to kill the victim. This is by way of context only and I do not sentence you on the basis of any alleged threat to kill, as there is no charge for this conduct.
20You were taken to the Narre Warren Police Station where you were lodged in the cells for three and a half hours, due to your state of drunkenness. Police described you as being unsteady on your feet, swaying back and forth and sideways, with blood shot eyes, strongly smelling of alcohol and you were slurring your words. I understand that these observations gives rise to the summary charge.
21The damage caused to the victim’s property including his car, amounted to approximately $975.00.
22The victim told police that he was scared when he realised that you were armed and because you were bigger than he. He was feeling a bit shaky and was worried about his children, especially his girls.[7]
[7]Statement of Robert Eklom (p.21)
23Liam Eklom told police that they were all scared.
24During the physical altercation with you, the victim received a laceration to his arm; a small laceration behind his ear, which required treatment with medical glue; and swelling to his elbow.[8] He later attended the Casey Hospital for treatment.[9] I was told that he continues to experience constant pain in his right elbow and is taking pain relief daily. He cannot complete some daily tasks due to the pain and cannot bowl.[10]
[8]Photographs (pp. 134-139)
[9]Exhibit 7, Medical Report
[10]Victim Impact Statement of Robert Eklom dated 30 July 2017
Arrest and Interview
25During the record of interview, you made the following admissions to police:[11]
[11]ROI (pp.184-203)
·You said that after a day at the cricket, you called Jodie to pick you up, but had to ask her to pull over when you realised that she was “pissed”. Jodie then broke down in tears, crying and carrying on and you just cracked. You said, “I had enough. Four years of bullshit. I’m living with a depressed alcoholic who used to be married to that person. I’m sick of it and I just wanna put a stop to it. He doesn’t wanna reason, comes down here and gets 15 year old girls to put IVO on their mother. I just don’t comprehend it and I’ve got to pick up the pieces. I’ve been picking them up for four years and I had enough. I cracked under influence of alcohol.”
·You said that you had had 15 to 20 drinks during the day.
·You could not remember what happened at the address.
·You said you had memory issues, due to your stroke two and a half years ago.
·You said you were feeling “pretty sore” and were concerned about some bruises on your body, but could not remember how you got them.
·You said you remembered yelling at Rob, and sitting down across the road when the police arrived.
26Mr Vigilante, your offending is serious and calls for a punishment which is just in all of the circumstances. Your conduct must be denounced and I must give strong weight to general deterrence, in a bid to deter others from behaving as you have. In committing the aggravated burglary, both circumstances of aggravation which are contemplated by the offence, are present- That is, you entered the victim's premises armed with a weapon or weapons, being the rocks, and you entered whilst a person or persons were present. In addition, you entered the sanctity of the victim’s home late at night and behaved in a most frightening manner whilst the victim’s children were present. You were intoxicated, which is neither a mitigatory nor an aggravating future, but it helps to explain the level of your fury and disinhibition.
VICTIM IMPACT STATEMENTS
27I take into account the impact on the victims in this matter.
28In his victim impact statement, Mr Robert Eklom referred to his physical injuries and the constraints that his ongoing symptoms have placed on his life. He also referred to the property loss. He said that he repaired the house damage himself at an estimated cost of $1,100. Further, he said that he constantly thinks about the night of your offending. He said that he has become deeply depressed and anxious as a result of what you have done and no longer is able to go out and enjoy lawn bowls, as he used to. He is also hypervigilant about security at his home and is especially concerned about the impact of your offending on his children, who are his first priority. He never feels safe anymore. He said that the house and the car are constant reminders of your offending and he would love to be able to start over in a new house, without the dreadful reminders of what you have done.
29Layla Eklom said that after the incident, her emotions ranged from anger to fear. She does not like to coming into the house alone. She was doing VCE when she wrote her victim impact statement and she said she was struggling with her studies because of her constant thoughts about your conduct, which is also causing her sleepless nights. She is seeing a psychologist who is helping her deal with some of her difficulties. Her relationship with her mother is significantly damaged because of what you have done. She feels afraid for her father and of how your offending has impacted upon him.
30Liam Eklom said that things have not seemed the same after the incident. He has suffered some anxiety and lost his job following your offending. He does not like coming home to an empty house. His relationship with his mother is now strained. He said that his father did not deserve what had happened to him.
31Tamsin Eklom said that after the incident, she stayed with her friends for over a week, as she could not face going home. She said that she finds it hard to sleep some nights, waking easily to noise. She does not feel safe at home and is very frightened when there alone. She has also been receiving counselling.
32These are the very serious effects of your offending on the victim and the children of the victim and I take these into account when sentencing you.
33You have a fairly limited criminal history, although one matter is particularly relevant to the offences before me. In 1994 when you were 18, you were convicted and fined $400 for intentionally damaging property. Although this is what you are being dealt with again, the prior matter is somewhat dated. However, on 19 June 2014, you were dealt with for contravening a family violence order. The matter was proven, but dismissed. I was told that this related to you conversing with the victim’s son at a hotel where you both happened to be. You told him to respect his mother, as you were leaving the premises, as you were not allowed to be within a certain distance of him. Although this was a fairly minor breach of an intervention order and occurred in December 2012, it does has some relevance in respect of the matters before me.
34I take into account your personal circumstances and background.
35I was provided with a most detailed chronology on your behalf from
Ms Hollingworth, who appeared on your behalf and have factored this in when sentencing you.36You were born into a loving and caring family. Your parents had migrated to Australia from Italy. You attended school until Year 10. After completing that year, you embarked on a plumbing apprenticeship, which you subsequently completed and became a licensed plumber when you were 20.
37I was told that you have a longstanding history of playing and umpiring Australian Rules football and cricket, and that you moved to Queensland when you were 21 to play football, for which you were paid.
38You commenced consuming alcohol when you were 15 years old, engaging in binge drinking on weekends. You then moved to regularly imbibing cannabis during your apprenticeship years and first tried amphetamine when you were 17 years old. You used amphetamine on some weekends for a time. You continued to use alcohol and drugs on weekends when living on Queensland, although not excessively.
39However, when you returned to Melbourne, your drug and alcohol use escalated, with you using amphetamine three times a week, although your cannabis use decreased somewhat. At this time, you were working as
a plumber on a sub-contractual basis. Your amphetamine use escalated further between the ages of 24 and 26, where you engaged in daily intravenous use. When your mother discovered this, the family intervened with you being admitted to a 28 day rehabilitation program at a hospital.40You then moved in with a young woman, Rebecca, who you subsequently married. Your drug use decreased dramatically, although you still injected amphetamine about every three months. You started your own business, which became highly successful, with you employing three staff members.
41In 2002, your daughter was born and you completely stopped drug and alcohol use.
42You separated from Rebecca in January 2011, as your substantial work hours and other difficulties put a strain on your marriage. I understand that you enjoy an amicable relationship, notwithstanding your separation.
43Unfortunately, you suffered a major depressive episode following separation and you resorted to intravenous amphetamine use, as well as some cannabis and alcohol use.
44In 2012, the victim and his wife separated. I was told that the victim was gaoled for three months for breaches of an intervention order in respect of his former wife. After the victim was released from gaol, his children chose to live with him, rather than you and their mother.
45In mid-2013, you suffered a severe bout of pneumonia, which endured until about October that year, with you being hospitalised from time to time, including for an entire month. You suffered blood clots in both lungs and infections. You ceased all drug use at that time.
46Your business started to fail.
47I was told that in January 2014, you used amphetamine on one further occasion.
48In February 2014, you suffered a severe stroke, having ceased taking warfarin some weeks earlier. You were admitted to hospital in an unconscious state.
A brain aneurism was found and palliative care was discussed with your family. You suffered paralysis to your left side, then suffered seizures in the aftermath of the stroke, leading to you being placed on medication to prevent these. You then stayed at a rehabilitation facility for three months to help deal with the various ongoing difficulties caused by your illness.49In May 2014, your beloved mother died suddenly, without any warning, which understandably was devastating to you and your family.
50In June 2014, you were dealt with for the breach of intervention order, to which I previously referred and about two weeks after this, you self-referred to
a psychologist, Dr Peake, who diagnosed you with a major depressive disorder and recommended anti-depressants. You engaged in group therapy once a month.51You have some continuing problems because of your illness, including fatigue, weakness on your left side, poor hand/eye co-ordination, and short-term memory deficits. I understand that you also suffer difficulties associated with a gene mutation- When I refer to illness, I mean the aftermath of the stroke which you suffered.
52You were unable to engage in your occupation as a plumber because of your health problems. As at July 2014, you were unable to make your mortgage payments and feared bankruptcy. You became enmeshed in a dispute with the ANZ bank in contested bankruptcy proceedings. You sold your house and commenced renting. At about this time, your partner, Jodie, was hospitalized due to an issue associated with her drinking. Your stress levels were very high in view of all that was happening at about this time.
53In January 2015, your psychologist again recommended anti-depressant medication, but you resisted this, feeling too embarrassed take it. In August 2016, you were prescribed anti-depressants, commencing on a 30 milligram dosage level, which was doubled after two weeks.
54In December 2016, you had ear drum surgery. You and Jodie bought a house in Tyabb about that time, but Christmas was marred by the loss of your mother and your father saying that this would be his last Christmas.
55Following the offending for which I now sentence you, you were granted bail with strict conditions, requiring you to abstain from alcohol and not to enter licensed premises. I understand that you have abided by these conditions, which is to your credit. You have not committed any further offence.
56In January 2017, you were urgently referred to a psychiatrist, Dr Talluri and in March 2017, you commenced an anger management course.
57This matter proceeded by way of a hand-up plea brief at about this time, following a plea offer made by you. Therefore, you are entitled to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trauma of giving evidence and you have saved the community the time and expense of running contested proceedings.
58Your conduct did not occur completely out of the blue. There had been longstanding acrimony between you and your partner on the one hand and the victim and his children on the other. There had been the imposition of intervention orders on both sides and alleged breaches. As I said at the plea hearing, there had been a soap opera quality to the situation prior to your offending, although, apparently you and the victim were prepared to breach intervention orders in the past, which is a concerning aspect to this history.
59I was told that your partner, Jodie Eklom, had issues with alcohol and was said to be suffering from post-traumatic stress disorder following the loss of custody of her children. I was also told that her relationship with the victim had involved her being subjected to domestic violence over the course of their 18 year marriage; that with your physical and mental health issues, your failed business, your concern about your partner’s wellbeing and ongoing hostilities, you reached breaking point on the night in question.
60It was initially submitted by your counsel that on the basis of the report of
Dr Triglia, a psychiatrist from Forensicare, dated 5 October 2017, that all Verdins limbs were enlivened and that therefore, I ought reduce the weight that I would otherwise attach to your moral culpability, specific and general deterrence and find that any time in gaol would be harsher for you than for another because of your mental health. However, Dr Triglia did not make
a positive diagnosis as such.61I requested a Forensicare report from Dr Triglia, (as she was appointed), after receiving a psychiatric report from a Dr Talluri, dated 4 July 2017. Dr Talluri diagnosed you as suffering from bipolar disorder, severe depression, alcohol dependence- currently abstinent, severe sleep apnoea, epilepsy, cerebral venous stroke and prothrombin deficiency. He had first seen you on 14 January and said that it was difficult to have a definite opinion as to your mental state at the time of the offending. His report was fairly brief. Your treating psychologist said that she had been monitoring manic symptoms since July 2016 and formally diagnosed you, or purported to do so, as suffering bi-polar disorder on 4 January this year.
62I was not satisfied with the quality of the material in support of the submitted diagnosis of bipolar disorder and it was in those circumstances that
a Forensicare report was requested.63Dr Triglia was of the view that you did not meet the criteria for bipolar disorder
Type 1, but said,"However, he may well have had some overactivity and increase in goal-directed activity in late-2016, but without more serious disturbance in mood or other symptoms. It is possible therefore, that these symptoms were part of a hypomanic episode. Hypomania is similar to, but less severe than mania. If he did have hypomania, he likely meets criteria for bipolar disorder Type II, a less serious form of the disorder. It is possible that the symptoms developed as
a consequence of anti-depressant treatment. It is of note, however, that over the same time period, he was using large amounts of alcohol and it is likely that this contributed to his mental state change."
She goes on to say that you,
"may (emphasis mine) have been experiencing symptoms of hypomania at the time, with some increased anxiety and agitation, but there was no prior behavior towards the victim of a similar nature, despite the symptoms being reported for some time. A very significant contributor to the offences therefore, was his intoxication with alcohol, which likely impacted on anger and disinhibition."
64Ultimately, Ms Hollingworth requested an opportunity to have a discussion with Dr Triglia about her report, with a view to perhaps calling some evidence from her in respect of Verdins considerations. I adjourned the matter for this purpose and to enable the Crown to clarify their sentencing instructions in this matter.
I gave leave to the parties to inform me of their respective positions in these two matters via email, which they have now done and to which I have referred today.65In short, Ms Hollingworth does not rely on the first four Verdins principles, but she does rely on the 5th and 6th. In this regard, Dr Triglia said in her report that in view of your history of depression, you would be vulnerable to a recurrence of depressive symptoms and suicidal ideation in gaol and if given a custodial sentence, you would need to be closely monitored by mental health staff and be placed in a facility where mental health care was available.
66You have also been seen by a neuropsychologist through Monash Health.
I take into account the neuropsychological report, dated 14 March this year. You were found to be cognitively intact, with function in the low/average to average ranges. Your memory and learning performances fell within expectation. However, it was found that affective factors were contributing to your cognitive concerns, which was supported by your "extremely severe" ratings of affective disturbance on the screen questionnaire. It was highly recommended that you continue with psychiatric and psychological treatment.67You are currently required to take numerous medications which were listed in your counsel’s submissions and I have taken this into account also. You are required to take warfarin for the rest of your days.
68I take into account the evidence in respect of your mental and physical health in a general way and I also find that time in gaol would be harder for you than for someone without your physical and mental health issues. I also accept that, in gaol, it is likely that your mental health would deteriorate and I have factored this in.
69You are well supported by your partner, your family and friends, including your former wife. This was evident from the solid attendance of your supporters at the plea hearing and I understand they are here again today in support of you.
70I have also taken into account the character references which attest to your otherwise good character and the contribution you have made to your community through cricket. They also indicate that very soon after your offending, you were expressing remorse and showing some insight in respect of your offending. Your remorse was also reflected in your police record of interview and your co-operation. A further manifestation of these qualities was your almost immediate attendance at AA meetings on a daily and sometimes, twice daily basis. You also attended an anger management program and have completed a men's behavioural change program.
71I have also taken into account the drug screens which were tendered, which are clear, save for the presence of prescribed medication and accept that since your offending, you have abstained from alcohol and drugs.
72I understand that you would like to return to umpiring cricket, having resigned from your position at the local club after you committed these offences.
73In view of your very limited criminal history, your genuine remorse and level of insight, your strong family and friendship support, the character evidence and the positive steps you have taken since your offending, I find that your prospects of rehabilitation are very good and I need only place fairly minimal weight on specific deterrence.
74In the Court of Appeal decision of Hogarth v The Queen [2012] VSCA 302, the court made it clear that sentences imposed, as at that time, for home invasions were too low and did not adequately reflect the maximum penalty for this type of aggravated burglary. Subsequently, in the decision of Boulton & Ors v The Queen 46 VR 308, the Court of Appeal said that suitably crafted community corrections orders could do justice to all relevant sentencing principles in appropriate cases, even where the offence committed was quite serious. In circumstances where the offending was too serious for a community corrections order alone, the court said that a community corrections order, in combination with a gaol term, might well be appropriate.
75More recently, Parliament has seen fit to reduce the maximum gaol term available for combination imprisonment/community corrections orders from two years to one year imprisonment. Counsel have provided me with some cases to assist me with taking into account current sentencing practice. In particular, I have been assisted in this regard by Ms Hollingworth, as well as being provided with a table of cases.
76I must also abide by the very recent High Court decision of DPP V Dalgleish (a pseudonym) [2017] HCA 41, which makes it clear that current sentencing practice is but one matter to consider when imposing sentence and is not
a controlling factor.77In sentencing you, I have also been mindful of the absence of aggravating factors that one often sees in offending of this type, such as premeditation, attending a home in numbers, the use of knives or firearms, breaking into the property, as opposed to going through an unlocked door, as you did, and offending which occurs over a protracted period. However, your offending did occur late at night and in the presence of the victim’s children, as I have said.
78Your counsel submitted that a community corrections order alone, or failing that, a community corrections order, in combination with a sentence of imprisonment, was appropriate in your case. The prosecution submitted that a sentence of imprisonment which involved a non-parole period was the only appropriate penalty and this was confirmed by a senior Crown prosecutor.
79In the end, all relevant sentencing matters considered, I have come to the view that I cannot do justice to the weight that attaches to all relevant sentencing principles, unless I impose an immediate gaol term, with a non-parole period. However, I have done what I can to keep the head sentence and non-parole period to a minimum, in view of the matters in mitigation in your case and bearing in mind that this will be your first time in gaol.
80I intend to ensure that copy of my sentencing remarks about my concerns about your wellbeing in a gaol environment, are communicated as soon as possible- that is, today, to the prison authorities.
81Would you please stand up, Mr Vigilante.
82You are convicted of each of the charges.
83I make the disposal order and compensation order, both of which were sought by the Crown and not opposed by you.
84Further, I make a forensic sample order because of the seriousness of the offending, because the order is not opposed and because it is in the public interest to grant such an order. I should warn you that if you do not co-operate with the authorised officer or officers in the taking of the sample, which will be a buccal swab from the mouth, reasonable force can be used to take the sample.
85You are sentenced to the following terms of imprisonment:
86Charge 1, three years, which will be the head sentence.
87Charge 2, six months.
88Charge 3, six months.
89Summary Charge, one day imprisonment.
90Each of these terms of imprisonment are to be served wholly concurrently, in circumstances where I regard the charges as part and parcel of the same episode.
91This produces a total effective sentence of three years’ imprisonment and
I direct that you serve 15 months’ imprisonment before becoming eligible for parole.92If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years’ imprisonment, with a non-parole period of three years.
93Just take a seat for a moment please, sir.
94Is there anything arising from those sentencing remarks?
95MS HOLLINGWORTH: I will just say, for the benefit of transcript, Your Honour, that Mr Vigilante had not applied for an IVO against Mr Eklom and furthermore, I'm unaware of any breach by his partner of an IVO against Mr Eklom. I just say that for the benefit of transcript. That is, you mentioned that in your sentencing remarks.
96HER HONOUR: Well I said that there had been IVOs going in each direction in a general way. I was not actually saying who brought them, so.
97MS HOLLINGWORTH: Right.
98HER HOUNOUR: There was a lot of minutiae to get into, but what I was trying to capture there, Ms Hollingworth, is what was put forward on the plea, that there was acrimony going in each direction - - -
99MS HOLLINGWORTH: Yes.
100HER HONOUR: - - - from two different camps.
101MS HOLLINGWORTH: Thank you, Your Honour.
102HER HONOUR: Is that correct?
103MS HOLLINGWORTH: Yes.
104HER HONOUR: Yes. All right, yes, thank you.
105Yes, could you please remove Mr Vigilante. Thank you.
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