Director of Public Prosecutions v Vippond
[2019] VCC 856
•12 June 2019
guj
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-00252
Indictment No. K10340420
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK SHANE VIPPOND |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June 2019 | |
DATE OF SENTENCE: | 12 June 2019 | |
CASE MAY BE CITED AS: | DPP v VIPPOND | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 856 | |
REASONS FOR SENTENCE
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Subject:aggravated burglary, attempted theft, summary offences; committing indictable offence on bail, possess controlled weapon and resist police; 57 years old, very lengthy criminal record.
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APPEARANCES: | Counsel | Solicitors | |||
| For the Director of Public Prosecutions | Mr A. Sprague | Office of Public Prosecutions | |||
For the Accused | Mr C. Edwards | Victoria Legal Aid | |||
HIS HONOUR:
Mark Shane Vippond, yesterday you pleaded guilty to one charge of aggravated burglary and one charge of attempted theft punishable by maximum penalties of 25 and five years' imprisonment respectively. You also pleaded guilty to three related summary offences. There was one charge of committing an indictable offence on bail punishable by a three-month maximum term as well as one charge of possession of a controlled weapon and one charge of resisting police. That last charge is punishable by a six-month maximum, the weapons charge by a one-year maximum term of imprisonment.
As you know, you have a very lengthy criminal history. It is of clear relevance to my task as was conceded by your counsel. There are a large number of charges of burglary and theft and attempted theft as well as one instance of aggravated burglary and many assaults as well.
This matter was opened to me yesterday by the prosecutor Mr Sprague in accordance with a written opening, dated 27 May of this year. That document was marked as Exhibit A on the plea. No issue was taken with what was really an agreed statement of the facts in this case.
It is then unnecessary for me to descend to the full facts, as I will not go beyond that agreed statement. As you know, you entered residential premises at night as a trespasser with the intent to steal. It became an aggravated burglary courtesy of the presence of a person within and your knowledge of or more likely, it seems to me, your recklessness as to that fact. It was after all 12.30 am, a time when you would expect a house to be occupied, and so it was, by a lone 63-year-old woman who was in bed and heard the noises of your forced entry. She hid in her bedroom and rang the police and they attended pretty swiftly and they arrested you inside the premises after a bit of a struggle, hence the resist police charge. You had removed a bottle of wine from the pantry, hence the attempted theft. During the struggle a knife fell out of your pocket, hence the controlled weapon charge. That is not a weapon that is associated with any aggravation in terms of aggravated burglary. As I say, the aggravated burglary is founded on the presence of a person within and your state of mind as to that fact.
You were on bail at the time having been bailed on 3 October 2018, so the very day before. No interview was conducted owing to your aggressive demeanour and you have been in custody since the day of arrest. You tried to obtain summary jurisdiction and correctly it was refused by the Magistrate in January of this year and the matter progressed to this court.
In mitigation
Mr Edwards conducted an excellent plea on your behalf. It certain was not his fault, or yours for that matter, that the written outline of submissions that was dated 4 June had not been filed by his instructing solicitor. He took me to your background as well as to your criminal history. He made some submissions as to the relative seriousness of the offence and how it may be characterised. He also made submissions as to the importance of totality and proportionality of sentence.
Four reports were filed and relied upon, amongst them a report from Dr Cunningham, one from Jurmaine Health and one from ARBIAS. Your counsel relied upon a number of matters in mitigation and they were chiefly:
· Your early guilty plea;
· The presence of some remorse;
· The need for some level of structure upon your release from custody.
Your counsel conceded the inevitability of a prison term and one with a non-parole period being fixed, though urged the court to exercise some mercy in terms of fixing a meaningful parole period given the issues disclosed in the expert reports.
Prosecution
Mr Sprague, who appeared on behalf of the Director of Public Prosecutions, queried the existence of remorse in this case. He conceded that the aggravated burglary fell well below the most serious examples of such an offence but that it had some features that ranked it above the lowest level. He argued that you had a highly relevant criminal history with an evident need to protect the community from you. He argued that specific deterrence, denunciation and community protection would necessarily loom large and that a prison term was the only appropriate outcome here. Well, so much had been conceded by your own counsel.
Victim impact
There is no victim impact statement. I do not need one to know that this sort of offence can have a very negative impact upon an occupant. It is why it is so serious. Parliament has frequently commented on that aspect. She was present on the night. It was night-time. She was in bed in her own home and she was alone. Of course it is unnerving or disturbing to face this sort of intrusive and unwelcome entry as you seemingly concede in instructions to your counsel. Now, I cannot speculate about any long-term impact here, but undoubtedly there would have been an unsettling aspect in the currency of the offence and for some time beyond that moment. I take into account the impact of your crimes as I am required to.
Background
11 I turn briefly now to your background. It is set out in detail in the various reports filed on the plea as well as in your counsel's excellent written outline. Your counsel also made some brief oral submissions. I accept the family and other background placed before me and so I really see no need to repeat it all now in these reasons.
12 You were born on 6 June 1962, not the 16 June 1992 as seems to appear in Dr Cunningham's report. You are now 57 years old. You were one of five children. Your father was an alcoholic and could be violent. It probably was not the best of backgrounds and I take that into account as far as I am able to. Despite that, you were deeply impacted when he died at work when you were 20. He was electrocuted. Your mother died far more recently.
13 You were encouraged to leave school at a young age, 15 or so, and you worked in a factory. The general pattern of employment then was of relatively unskilled work and no great stability in the workforce owing to a couple of matters: generally your drug alcohol use, or relationship issues. There have been two major relationships spoken of in the materials, with one relationship producing two children but tragically a daughter died days within days of her birth. The other relationship produced a single child.
14 You were seemingly last employed quite some years ago now. You have those two children, they are now in their 20s, but you do not see them. The son lives up in Bairnsdale, so quite close to your prison setting at Fulham, but has not for some reason visited you. There has been some falling-out. Your daughter lives, you believe, up in Queensland, but you have lost contact altogether with her, with letters coming back marked 'return to sender'. You would like to try to resurrect those relationships down the track and that is understandable.
15 You have very few supports in the community and most recently had been living in a variety of boarding house accommodation. That was for a period of some years, though I understand that public housing may still yet be available to you upon your ultimate release into the community once a debt of some $600 is paid. Hopefully it will be open to you, because boarding house accommodation, you do not need me to say it but for you is highly problematic.
16 I will return briefly later in these reasons to the various expert materials that have placed before me as to your low level of functioning and the obvious and dire impact which alcohol has had on your life. Alcohol has been a major long-term problem for you from a very young age and other drugs have also been very problematic, including heroin, cannabis and ice to name but a few.
17 There is no point at all in my trawling my way through your past criminal history in these reasons. It is a very sizeable criminal record and it is obviously relevant to my task with a large number of past appearances for burglary, upwards of 30, as well as one aggravated burglary dealt with back in September 2014 with a sentence imposed on appeal to this court. Also a large number of other offences including thefts or attempted thefts, assaults and assault police. You have breached all manner of court orders including intensive corrections orders, community-based orders, community corrections order and suspended sentences.
18 You were on a community corrections order at the time of this offending, having received at Latrobe Valley Magistrates Court on 8 December 2017 a combination disposition with a sentence of 315 days' imprisonment providing for your release onto a community corrections order. So you were on that community corrections order as well as on bail from the very day before, when you committed these offences. You had made some efforts on that community corrections order, but it ran off the rails from about June of last year, I was told, when you moved to a boarding house in Croydon that was disturbingly close to a large drinking bar/hotel out there.
19 That order, the community corrections order, is listed for breach later this month and I note that the efforts that you had made led to a recommendation as to variation upon breach. You must have made some demonstrable efforts on that order, it seems to me, for that recommendation to have found its way into a report. So I accept that and I do factor that into the judgment that I make as to your future prospects. There are also a few of the old summaries of your past offending placed before me and marked as Exhibit B.
20 I make clear I am not sentencing you again for any of these past crimes. You have after all been sentenced in the past and you have served those past sentences, but your history is relevant to my task. That plainly is so and your counsel concedes it. That is because I have to make assessments as to your risk of re-offence, you prospects of rehabilitation and the need to consider protection of the community in my sentencing task. The offences for which I must pass sentence occurred whilst you were on bail and on a community corrections order. Courts have tried to deter you over many decades with little success and I must try again. You really cannot expect any great leniency when you come before a court charged with burglary or aggravated burglary. You are no longer some silly teenager, you are a middle-aged repeat offender with a very long criminal record. You have been sent to prison many times and that is what will continue to happen until you desist from offending. Specific deterrence and community protection are undoubtedly important here. It is obvious.
Guilty plea
21 I turn then to the various matters raised in mitigation. The first of those is your guilty plea. Now, it was your right to seek to have the matter heard in the Magistrates court, so I do not hold that against you. That is just the right that a person has. It follows then that you have pleaded guilty at the earliest stage and you must be rewarded for that stance. You have taken that early responsibility for your offending and you have in this way facilitated the course of justice. There is a utilitarian benefit in a person pleading guilty. Witnesses, including in this case the lone female victim of the aggravated burglary charge, have been spared the experience of coming to court to give evidence. That may well have been a distressing experience for her reliving that crime as a witness in the witness box and of course it has been entirely averted. The community has also been saved the time, the cost as well as the effort associated with a contested hearing either down in the Magistrates' Court or up in this court, so I take those matters into account in mitigation.
Remorse
Your counsel suggested that I should find that there was at least some remorse here. A guilty plea is often indicative of some remorse, but that is not always the position. Here of course it was an overwhelming case. You were after all arrested inside the house at 12.30 am. Though the strength of the Crown case does not affect the weight I give to the allowances for your guilty plea, it can be relevant to the judgment to be made as to the finding of remorse or the remorse that might otherwise be implied from a guilty plea.
Your counsel related to me your instructions to him signifying some recognition of the way this poor occupant may have been affected and also pointed to your telling Cunningham that you had acted wrongly. You have entered countless houses as a trespasser in the past and you have been taken to court on countless occasions and dealt with on countless occasions, including for the aggravated burglary committed in February 2014. Your insight into the impact of your crimes does not seemingly stop you from committing them in the future. However, I suppose that does not mean that you are not sorry after the event. I am ultimately prepared to find some level of remorse implied here from the early guilty plea, but I really cannot see any other great sign of it in the materials.
Rehabilitation
I turn now then to your prospects of rehabilitation and really your counsel did not suggest that you had glowing prospects of rehabilitation. There was no point using extravagant or unrealistic language and he did not. He sensibly argued that you had some guarded prospects of rehabilitation. That was as high as he could put it and that was easily understandable.
You are 57 years of age with a pretty dreadful criminal history. You have been committing crimes for over 30 years. You have been sent to prison repeatedly for burglary and yet you keep committing them upon release. Here you were on a community corrections order as well as on bail and neither of those things stopped you from offending. You have very long-term serious issues with a number of illicit drugs and grave issues with alcohol. These things have left an indelible mark on you. You have little by way of support or structure in the community. You are at least doing quite well in custody, working and doing courses, and I am told you are remaining substance-free there. I am certainly not going to write you off completely and you did make some efforts on that most recent community corrections order.
I suppose there is always some chance that a person may change, but I am afraid there is no reason to be particularly optimistic here. I can only be guarded, as your counsel concedes. Plainly you have a relatively high risk of reoffending, but you have at least some prospects of rehabilitation. I believe those prospects are relatively poor here. If you do not desist from drinking and from taking illicit drugs you will have no prospects at all. None.
Expert reports
I turn then to the reports that have been filed before me. I have read the four reports again since yesterday and I am going to resist the temptation of descending into the details of them in my reasons. Your counsel summarised them in his written outline and did not spend any significant time on those reports, and for good reason. It is plain that you are not functioning at a high level at all. You have reduced processing speeds and a poor working memory amongst many other deficits. Much of the deterioration in your functioning is attributed to alcohol misuse over many years. There is executive dysfunction and of course it is not helped by ongoing alcohol or drug use. The opinion in the ARBIAS report on p.7 makes for some pretty depressing reading. More depressingly, that report is nine years of age and nothing seems to have changed.
Your more recent testing from Ms Anderson in 2017 shows you are functioning at a borderline to low-average level. There had been some improvement in functioning from her past testing, but that really may only have represented the fact of enforced abstinence in the lead-up to this test owing to your incarceration back in 2017. Again the results provided by her are very much supportive of an alcohol-related brain injury and with a view consistently expressed in the materials that it is to be regarded as permanent.
None of this material was being relied upon in a Verdins fashion. That is to say there was no realistic connection to the offending. It was not relied upon in any mitigatory fashion as for instance reducing your culpability or leading to any moderation of normal sentencing purposes, nor was any increased custodial burden or risk of deterioration raised on those materials. You know what you are doing is wrong, but of course when acting under the influence of drugs or alcohol or both. You, like so many others, experience disinhibition. You act in the moment and you do so impulsively. That is not mitigatory. Your counsel was explicit in submitting that there was no direct or realistic connection between the conditions spoken of in the reports and your decision to offend. You burgle houses. You always have. You know it is wrong. You know you should not do it and yet you do. You have difficulty controlling impulses especially when you are very drunk and on this occasion you had drunk a large bottle of vodka as well as taking drugs, as disclosed in the account to the psychologist.
There is no increased burden owing to these factors, though I note that it is a fairly desolate experience for you. You appear in front of me with no one supporting you, which is a bit disturbing. You are being held in custody and it is an isolating experience for you in custody with no visitors at all and loss of contact with your family. That itself I think is making your custodial experience more burdensome than might otherwise be the case and I will give some modest weight to that factor in mitigation.
Plainly this expert material demonstrates that you will need significant support in the community upon your ultimate release, whenever that is.
General remarks
As to the offences themselves, your counsel was conceding that this was serious offending. He after all was conceding the inevitability of a prison term and one requiring the fixing of a non-parole period.
There has been much discussion in the Court of Appeal over the years about the sentencing practices for the crime of aggravated burglary and the manner of assessing the seriousness of the given offence. Mr Edwards took me to one of those cases, the case of Meyers, where a number of considerations were set out including the intent upon entry, the manner of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
Having taken me to those aspects, your counsel suggested the offending was not in the worst category and was in fact in the lower category of offence seriousness. In support of this submission he argued that there was no weapon carried, it was not joint entry, there was no contact with the victim or acrimonious relationship which would cause some heightened fear in the mind of the victim. It had the signs of being spontaneous, relatively impulsive offending with no disguise employed. The attempted theft was of low value.
All that is of course true. It, and I am speaking of the aggravated burglary, was still a serious crime and one committed by a very much seasoned offender. You may not remember much about it, but that is not decisive. It did not just happen. You had left your home, the home where you had been escorted by police who were doing the right thing in taking you home. You then chose to leave it. You left your home and selected a residential property within walking distance of the boarding house. It was very late at night at a time when you would expect that it might be occupied. You forced your way in. You undertook no pretext knocking to establish if the house was occupied as sometimes occurs. You just forced your way into the premises. You were seriously affected by alcohol, but of course that is not mitigatory. The intent was to steal, not to assault or to confront.
It follows that it was not a confrontational aggravated burglary and there are a number of features of aggravation that are absent here, including of course the possession of a weapon. But make no mistake, it is still a serious crime to do what you did. This style of aggravated burglary, though not as serious as an in-company confrontational-type entry, is still an inherently dangerous and serious offence. There is obviously a serious risk of a resident being disturbed and coming to investigate and then a potential confrontation ensuing. After all you had no idea at all who was inside or how they may react to your presence or how you may react if disturbed. The risk of escalation in this style of offending is pretty plain. It is not surprising that such entries have a significant impact upon the sense of safety and security ordinarily felt within one's own home.
Time and time again our Court of Appeal has emphasised the seriousness of this sort of crime. I have barely mentioned the second charge being the attempted theft and plainly it is far less serious, so are the summary matters. I have to pay regard to the need to denounce and discourage those who will resist the police when they are executing their lawful powers as they were here. Also to punish those who commit offences on bail or those who for whatever reason choose to carry weapons.
As to the aggravated burglary, this was unmistakably serious criminal conduct by a mature man with a very sizeable criminal history, one on bail at the time as well as on a community corrections order for crimes, amongst them a crime of burglary. You also have that relatively recent prior conviction for aggravated burglary. This was not offending at the lowest level, though it was obviously, as I said in the course of the plea, a mile removed from the most serious examples of this offence.
Purposes
I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I do not ignore those prospects, but I fear they are quite poor and I can only be quite guarded. Rehabilitation must surrender some ground to the other purposes of sentencing.
I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. You know that and yet you keep committing crimes. Punishment is still an important sentencing purpose. So too is denunciation of your conduct.
There is also the strong need for this court to seek to deter you from offending in the future. Self-evidently that is a very important sentencing purpose in this case.
Community protection is also obviously a very significant purpose of sentencing here. You have a relatively high risk of reoffending. I must protect the community from you, but of course I must only pass proportionate sentences. I cannot look at your past criminal record and then act by imposing a disproportionate penalty here.
This brings me then to the concept of general deterrence. Not only must I seek to deter you. I must seek to deter others from committing offences such as yours. General deterrence is an important purpose in this sort of case. This court must send a clear message to other individuals in the community who might be minded to commit this sort of serious crime. In saying that, I am speaking of the aggravated burglary.
I pay regard to current sentencing practices, though it is not a controlling factor. It is just one matter I have to have regard to.
I have considered the Sentencing Advisory Council's snapshot in relation to the offence of aggravated burglary - that is snapshot No. 211 of June 2018 - also the more updated SACStat data in relation to that crime. The snapshot discloses that of those imprisoned for this offence in that relevant time frame the most common length of sentence in that period was three to less than four years. I have looked also at the Judicial College of Victoria sentencing manual dealing with an overview of aggravated burglary sentences at 32.15.4.1. The statistical material has inherent limitations and so for that matter do other cases.
I am not here to sentence according to the most common or average or median sentence in the past. They are just statistical terms and they say nothing as to the individual features of the offence or the offender. Other cases always have differences in offence details or the personal details of the offender, and so sentences in other cases are not precedents. What I have to do is to pass an appropriate sentence in your case for your crimes, and so the statistics and other examples of sentences that have been passed really do not provide the answer to my task.
I do have to pay regard to the maximum penalties at play as well as the impact of the crimes.
Plainly I have no option but to imprison you. You know that and your counsel conceded that. Your counsel was not suggesting that there was any alternative other than to impose a head sentence and then to fix a non-parole period. He was not for instance suggesting that a combination-type disposition was open and plainly he was right to make that concession. You had received a combination-type disposition and were on the community corrections order component at the time of this serious offending. He argued though for a meaningful parole period. Well, I will leave a decent enough gap, but I can make no assumptions at all as to whether you will be released on parole. Plainly you need support upon your release whenever that is, but I must proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. Whether you are released before then is entirely in the hands of the Adult Parole Board. I suppose actually it will be between you and them; it has nothing at all to do with me.
Totality/cumulation
I take into account totality of sentence. I have reviewed the sentences and the total effect of them to ensure they are commensurate with your overall criminality and are not crushing upon you. The major sentence obviously will be in relation to the aggravated burglary. As to the other matters, in fact what I have decided to do is to run them concurrently in recognition of the principle of totality.
Section 16(3C) of the Sentencing Act has then no real work to do in this setting. You are not serving another sentence, all of the matters I am dealing with occurred on a single day whilst on bail and, as I say, I will be imposing a base sentence on the aggravated burglary and then passing some far smaller sentences and ordering total concurrency with the base.
Sentence
Mr Vippond, please stand up if you would and I will pronounce sentence upon you.
On Charge 1, the charge of aggravated burglary, you are convicted and sentenced to 39 months or three years and three months' imprisonment. That is the base sentence.
On Charge 2, attempted theft, you are convicted and sentenced to three days' imprisonment.
54 On the summary charge of resisting police you are convicted and sentenced to 14 days' imprisonment.
55 On the summary charge of possessing a controlled weapon I convict and sentence you to seven days' imprisonment.
Total Effective Sentence
56 On the summary charge of offending whilst on bail I convict and sentence you to 14 days' imprisonment.
As I have said, the base sentence is the 39 months imposed on Charge 1, that is the aggravated burglary, and all other sentences will run concurrently with that term. So that therefore results in a total effective sentence of 39 months or three years and three months.
Non Parole Period
As I have said, I am going to provide for a decent gap between that head sentence and your non-parole period, the sort of gap that might ordinarily speak of decent prospects of rehabilitation, which, as I have said, I do not find in this case. It is a recognition of the desirability of there being the potential at least for some decent level of ongoing structure. As I say, whether you will be released is not something I can reflect on, but I am required to fix a non-parole period and I have selected this period for the reasons that I have announced.
I fix a period then of 22 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
59 You have already served 251 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury I would have imprisoned you for five years. I would have fixed a non-parole period of three years and seven months. That is to be entered in the records of the court.
Just have a seat then for a moment. Are there any other matters I need to attend to?
COUNSEL: No, Your Honour.
HIS HONOUR: All right. You'll go down and see your client downstairs, Mr Edwards?
MR EDWARDS: Yes, I will, Your Honour.
HIS HONOUR: All right, thanks very much. Well, look, that completes the matter then, Mr Vippond. Mr Edwards will come down and see you downstairs, all right?
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