Director of Public Prosecutions v Visser

[2021] VCC 1537

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-21-00946

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACH DE VISSER

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	6 OCTOBER 2021
DATE OF SENTENCE:	12 OCTOBER 2021
CASE MAY BE CITED AS:	DPP v Visser
MEDIUM NEUTRAL CITATION:	[2021] VCC 1537

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Aggravated burglary- Blackmail- Assault with weapon- circumstances of COVID-19 pandemic

Legislation Cited:      Sentencing Act 1991

Cases Cited:Hogarth v R (2012) 37 VR 658; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Brown v The Queen [2021] VSCA 204; R v Verdins[2007] VSCA 102; (2007) 16 VR 269; Worboyes v R [2021] VSCA 169

Sentence:                  Total effective sentence of 5 years and 6 months imprisonment. Non-parole period fixed at 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Sargent	Office of Public Prosecutions
For the Accused	Mr W. Barker	Balmer & Associates

HER HONOUR:

1Zach De Visser, you have pleaded guilty to:

· One charge of aggravated burglary contrary to section 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment;

· One charge of blackmail contrary to section 87(1) of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment.

· One related summary charge of assault with a weapon contrary to section 23 of the Summary Offences Act 1966 which carries a maximum penalty of 3 months imprisonment or 15 penalty units; and

· One related summary charge of driving whilst disqualified contrary to section 30 of the Road Safety Act 1986 which carries a maximum penalty of 2 years imprisonment or 240 penalty units.

Circumstances of offending

2The circumstances of your offending are set out in a detailed Summary of Prosecution Opening, marked Exhibit 1 on the plea. The offending in this case took place on 28 July 2020.

3By way of background, your father John De Visser passed away approximately five years before this offending. Upon his passing, your father named his brother Harry De Visser (your uncle) and his wife Tristesse De Visser as executors to his Will. The estate included properties and businesses which were managed by Tristesse De Visser, as Harry De Visser had suffered a stroke and was too unwell to perform the role of executor. You, however, were a beneficiary of the Will.

4You were not happy with the manner in which Tristesse and Harry De Visser were managing the estate and there was an attempt at mediation, in an effort to resolve the issues. Mediation was unsuccessful and on the last occasion when you saw your aunt and uncle in February 2020, you left their home angry and emotional. Mr. and Mrs. De Visser had been living at a large rural property in Swan Reach for approximately 15 to 20 years.

5In the days leading up to these offences, you took a number of steps in preparation for your offending. On 25 July 2020, you attended at Port Melbourne Bunnings Warehouse and purchased three red 10-litre jerry cans. The following day you attended at Mornington Bunnings Warehouse and purchased some items including black disposable gloves. On 26 July 2020, you rented a Kia Cerrato registration 1OU 6YI in the name of your mother, Lesley De Visser. That vehicle had been fitted with a GPS, which recorded tracking data.

6On 27 July 2020 at 3:45am the Kia travelled from Dromana where you were residing at the Bay Motel, to Bairnsdale. At 8:45am, the Kia went through the Lakes Entrance McDonald’s. The vehicle was being driven by two associates of yours, and you were seated in the rear driver’s seat. The tracking data indicates that throughout the day the Kia was driven in the East Gippsland area including Swan Reach Road, at one point stopping at a fishing spot in the vicinity of the De Visser’s home.

7At approximately 6:45am on 28 July 2020, Tristesse De Visser was sitting in the sewing room of her home near the kitchen. Her husband was in bed. You entered the kitchen from an external sliding door which had curtains drawn across it. Upon hearing the noise, Mrs. De Visser went into the kitchen and saw you. At the time, she did not know who had entered her home, as you were wearing clothing which she described as being similar to an SAS soldier - with a balaclava covering your face, shiny black gloves and headlamp. You were holding what appeared to be a barrel with yellow stripe on it. (Charge 1: aggravated burglary).

8You told Mrs. De Visser to “sit down and put this on” handing her a pillowcase. When Mrs. De Visser did not comply, you walked behind her and pointed the barrel past her right ear. Although the lighting was poor, Mrs. De Visser saw the barrel in her peripheral vision and heard a click as you shot a bolt into a picture, which lodged in the wall. Mrs. Visser then realised that the weapon was a crossbow. She sat down, pulling the pillowcase over her head. (Summary charge: assault with weapon).

9Mrs. De Visser was able to see through the fabric of the pillowcase. She watched as you got a pen from the kitchen and placed documents in front of her saying “read this and sign it” (Charge 2: Blackmail). As you spoke, Mrs. De Visser recognised your voice as being that of her nephew.

10Mrs. De Visser was required to take the pillowcase off her head and put her glasses on, in order to read the document. You told her to make an amendment to the document and again instructed her to sign it. You told your victim that if she did not sign the document, “bigger” people would be coming to make her sign it. Mrs. De Visser was terrified and wrote her name on the document. She noticed that the paper had already been signed next to your name. There was a section for her husband to sign.

11You then collected the copies of the document and pulled the arrow out of the wall. You told Mrs. De Visser to put the pillowcase back on her head and that if she didn’t, people would come. You then left the property and Mrs. De Visser called 000. After you left, Mrs. De Visser noticed a fuel container on the veranda that did not belong to her. The purpose of the jerry can has not been identified. It contained a liquid which was not forensically examined.

12Police attended the Swan Reach address and seized a number of items including a copy of the document that Mrs. De Visser was told to sign, the jerry can and a navy blue jacket that was hanging on a fence in the driveway. A DNA sample was taken from the jerry can which was later forensically examined and linked to you.

13Meanwhile, you then returned to the Bay Motel in Dromana, arriving at approximately 11am.

14Later the same day, contact was made by you with investigators, and an appointment was arranged for you to attend the Frankston Police Station the following day.

15On 29 July 2020 you drove the Kia to Frankston and attended the police station (Summary charge: drive whilst disqualified).  There, you participated in a record of interview answering ‘no comment’ in response to the allegations. However, when asked about your relationship with Mrs. De Visser and her husband, you responded, “I could sit here all day”.

16Your telephone was seized and investigators observed on your phone, images of the document that Mrs. De Visser was told to sign which was also sent to a contact named “Allen lawyer”.  In another photograph, you could be seen wearing the same navy blue jacket that was seized from outside the Swan Reach property.

17On 13 August 2020, investigators executed a search warrant at the Bay Motel Dromana and searched the room in which you were residing. Police located three copies of the documents that Mrs. De Visser signed, two of which were in plastic pockets, and a pair of ‘Prohands’ black disposable gloves in a box.

Victim Impact

18A Victim Impact Statement was prepared by Mrs. De Visser on 22 September 2021, and tendered on the plea (Exhibit 2). It is fair to say that this offending has had a profound impact upon her. She describes that much of her day is now consumed by this invasion of, not only her home, but her mind too. In the morning she hesitates before entering her kitchen, just in case. She is not brave enough to go outside and watch the sunrise, and she keeps her curtains closed. Her heart skips a beat when she hears noises, such as condensation falling on the veranda floor or when the roof creaks. Although she knows that you are not there, she still experiences shivers up and down her spine when something moves unexpectedly. This offending has impacted upon her sleeping hours as well as her waking hours. The De Vissers have since sold their farm - the home they shared for many years. You have caused your victim a very deep trauma and Mrs. De Visser is also saddened that as a consequence of this offending, she is not able to adhere to the promise that you made to your father. I have taken only the admissible material in Mrs. De Visser’s powerful Victim Impact Statement into account.

Procedural History

19You were arrested on 13 August 2020 and remanded in custody. The matter proceeded to a contested committal hearing in the Magistrates Court where both Tristesse and Harry De Visser gave evidence. The contested committal hearing took place on 7 May 2021 and you were committed to stand trial in the County Court. On 8 September 2021, during a Directions Hearing, you indicated your intention to plead guilty to these charges.

Prior Criminal History

20At the time of this offending, you were 31 years of age. You have admitted a prior criminal history. Your first appearance was in January 2014, and there have been a number of appearances since that time, all of which were dealt with in the Magistrates’ Court. I note that you have no prior matters for burglary related offences, nor for blackmail. You do have a number of prior convictions for theft. In particular, you have prior appearances for offences involving contravention of family violence intervention orders, which I am told relate to your former partner, who was also the victim of the unlawful assaults. You received a seven-day sentence of imprisonment in August 2016 for family violence offending and unlawful assault, in combination with a Community Corrections order. This is the only sentence of imprisonment that you have received.

21You have however, been placed on multiple Community Correction Orders since February 2015. In each instance you have breached those Community Correction Orders, with the exception of an order imposed on 17 January 2018 at the Dandenong Magistrates Court. A further Community Corrections Order from 11 January 2019 for unlicenced driving was later cancelled and you were instead convicted and fined. It seems that since January 2018, there was a significant scaling down of your offending, and this may coincide with the mental health support that you began receiving in 2018 and your compliance with prescription medication, of which I will say more later.  You also have prior matters for driving offences.

Personal Circumstances

22An outline of plea submissions was filed on your behalf. You were born in Merimbula, New South Wales to Lesley and John De Visser on 14 October 1988. Your parents separated when you were around four years old and you resided with your father, mainly in Warragul NSW, until his passing when you were 26 years of age. You enjoyed a good relationship with both of your parents, but were particularly close with your father. You spent most of your life working alongside him, even from the young age of about 7 years, where you spent time helping him at the $2 shop; through until the age of 15 when you left high school part way through year 9. You had experienced problems at school, with respect to learning difficulties as a consequence of dyslexia, which resulted in poor grade and low attendance; you experienced bullying and several suspensions. You left school as you were keen to follow in your father’s footsteps.

23After leaving school, you continued to work in the two dollar shop until you were 21. At that time, your father purchased land in Warragul on which commercial buildings were developed. You, with your father, project managed the building, hiring subcontractors and you also worked on this site for around two years until you were 23. Your father eventually built a portfolio of commercial real estate and businesses. There were times when you worked with your uncle on some of the projects but did not have a good relationship with him, and felt he was critical of you.

24You have two full siblings and one half sister. You have no children and no current partner. For a number of years, you started doing your own company work with the assistance of your brother. You had difficulties on occasions paying the bills and eventually sold the business. Meanwhile your father fell ill with lymphoma, which had a significant impact upon you. As a result of your inability to cope with his illness, you began using drugs, in particular methamphetamine. You were responsible for caring for your father, helping him to wash, taking him to appointments. His death in 2015, for which you were present, affected you deeply.

25Your substance use escalated when your father passed away. You moved in with your then partner, and the relationship was characterised by frequent arguing. You stopped working and within a short period of time, you were using methamphetamines daily. This coincides for the most part, with you committing criminal offences, as is reflected in your prior criminal history. You eventually separated from your partner and there were family violence proceedings in place. You moved to your mother’s house in Bairnsdale, though as this was crowded, you found yourself staying with friends or sleeping in your car.

26Approximately three years before this offending you began seeing a psychiatrist to try to deal with your various mental health issues. You were diagnosed in 2018 with Attention Deficit Hyperactivity Disorder (ADHD), and you were prescribed Dexamphetamines. However, you ceased taking your ADHD medication in the period leading up to this offending and again succumbed back to methamphetamine use.

27You became increasingly concerned about the way in which your uncle and aunt were managing your father’s estate. You felt that they were not acting in the best interests of the trust and the family, and began legal proceedings against them. The attempts at resolution were unsuccessful, and eventually you made a decision to resolve these problems yourself by way of committing these offences.

Mental health

28Tendered on your plea was a report by psychologist Gina Cidoni dated 19 September 2021 (Exhibit A). According to Ms. Cidoni, you meet the criteria under the DSM-5 for Attention Deficit Hyperactivity Disorder, Adjustment Disorder with anxiety and depression, and Stimulant Use Disorder. You are currently prescribed Seroquel, and since you have been in custody, you have not been able to continue with your ADHD medication as it is not permitted.

29Ms. Cidoni considers that you also have periods of depressed mood, low self-esteem, poor concentration, and feelings of hopelessness with recurrent manifestations of major depressive episodes. Anxiety is said to be present. In her view, you seem to display difficulty rationalising decisions and acting logically.

30Ms. Cidoni makes the general observation that sufferers of ADHD are commonly observed as having reduced capacity to pay attention, inhibit their impulses and regulate their behaviour relative to rules, time, and the future. Ms. Cidoni also notes that Adjustment Disorder occurs when an individual is unable to adjust or cope with stressors or major life events. Ms. Cidoni opines that a major event for you was your father’s death. She notes that disturbance of conduct is a possible feature, with the development of behavioural issues that can include unlawful conduct. Generally speaking, this can cause feelings of inability to cope, plan ahead, make good decisions and perform daily routines like work.

31In Ms Cidoni’s view, these factors all relate directly to your offending; that is, the context of your crimes she says, are explained by a lack of self-control engendered by your ADHD and Adjustment Disorder. Ms. Cidoni opines that your mental illness seriously impeded your decision making and impulse control.

32Your counsel, Mr. Barker has submitted that the principles as established in R vVerdins[1] have application here. Specifically, it is submitted that considerations of Verdins are enlivened with respect to a) a reduction in your moral culpability; and b) to a reduction of weight to be given to deterrence. During the course of your further plea, your counsel has indicated that reliance is made on limbs 5 and 6 of Verdins, which relate to the relationship between your mental health issues and your time in custody.

[1] (2007) 16 VR 269 (“Verdins”)

33In contrast, the prosecution submits that the evidence is not sufficiently cogent to establish that at the time of the offending, you were in an impaired mental state such that it adversely affected your capacity to exercise appropriate judgment and control your behaviour; nor that there is a realistic causal nexus between your mental state and the offending.

34As the prosecution points out, your offending occurred in the context of methamphetamine use, following your own decision to cease ADHD medication. As Ms. Cidoni notes, your substance use led to disinhibited behaviours. It encouraged the medication non-compliance and increased your inherent impulsive behaviours. You have indicated to Ms. Cidoni that you have some level of awareness as to the influence drugs has on your behaviour, stating that when affected, certainly towards your former partner, you could become vulgar.

35I am of the view that the evidence required to establish a clear nexus between your mental health issues and the offending, is insufficient. Indeed, it is very difficult to disentangle your substance use from your mental health issues. Although Ms. Cidoni notes the role your ADHD plays with respect to a lack of self control, the evidence does not establish that these issues (as distinct from your drug taking) seriously impeded your decision making to the degree necessary to satisfy me that the principles of Verdins are made out, with respect to reducing your moral culpability.

36While your ADHD and Adjustment Disorder provide the context for your drug taking, I do not accept that there is sufficient reasoning to establish a causal connection between those mental health diagnoses and your conduct on this occasion, given the interplay with your drug use at the time you committed these offences.

37This was not a spur of the moment offending. There was a considerable degree of planning and preparation involved over a number of days.  Your eventual trip to Swan Reach occupied a number of hours in which you had ample opportunity to reconsider the folly of the behaviour on which you were about to embark.

38Although I do not consider that your ADHD and Adjustment Disorder and Stimulant Drug use gives rise to a reduction in moral culpability, it is nonetheless relevant. I do consider that your inability to access suitable medication to manage your ADHD, combined with the other stressors outlined in Ms. Cidoni’s report, including anxiety, intense emotional reactions, mood swings, distress and impulsivity will likely worsen your symptoms and maladjustment. To this end, I consider that Verdins is enlivened with respect to limbs 5 and 6; namely that your time in custody may weigh more heavily on you than a person in normal health, and, that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health.

Nature and gravity of offending

39The offences of aggravated burglary and blackmail are both serious offences, as is reflected by each of their respective maximum penalties, to which I have had regard. In Hogarth v The Queen,[2] the Court of Appeal described offences of this type, that is, a confrontational aggravated burglary, as a ‘particularly nasty form of criminal conduct’, concluding that sentencing practices needed to reflect the objective gravity of this kind of offending. As was clarified in the Director of Public Prosecutions v Meyers,[3] all aggravated burglaries which involve confrontation and violence or threats of violence, should be viewed very seriously and this applies where the target of the attack is a person against whom the grievance is held. The Court in Meyers identified a number of considerations which would ordinarily be relevant to the assessment of the seriousness of the offence.

[2] (2012) 37 VR 658 (“Hogarth”)

[3] (2014) 44 VR 486 (“Meyers”)

40Mr De Visser, your offending is objectively very serious. Your counsel has submitted that despite the serious nature of these charges, they are said to fall toward the lesser end of the scale of seriousness. I do not agree with that submission. In my view, your offending here is particularly grave. 

·        Your offending involved a degree of planning by way of purchasing jerry cans and disposable gloves.

·        At some point you prepared the typed document that you presented to Mrs. De Visser for signing.

·        You hired a motor vehicle in your mother’s name and travelled a considerable distance from Dromana to the home of Mr and Mrs De Visser. You had plenty of time to think about your actions, which could not be described as spontaneous. 

·        In the early hours of the morning, at dawn you entered the couple’s home and confronted Mrs De Visser whilst she was alone in her kitchen.

·        You were dressed to conceal your face in what is described as SAS attire, with a balaclava, headlamp and shiny black gloves.

·        You carried with you a weapon. Although Mrs De Visser initially believed the weapon was a gun, she later realised that it was a crossbow. The fact that you carried a crossbow into her home is nonetheless serious.

·        Your overall offending is made more serious by virtue of the fact that you discharged that weapon from behind Mrs De Visser into the wall, no doubt in an effort to frighten her and ensure her compliance with your demands, initially that she place a pillowcase over her head.  A pillowcase you had brought with you. The discharge of that weapon relates to a separate charge to which you have pleaded guilty.

41Your counsel has told the court that you were dressed in the way that you were, that, is disguised, as you did not think Mrs De Visser would agree to sign the document had she seen that you were the person entering the premises and demanding a signature. This makes your offending worse in my view, as it seems that your intention in committing both the aggravated burglary and the blackmail was indeed to frighten your victim into acquiescing to your demands to sign the document.

42In assessing the objective seriousness of the charge of aggravated burglary, I take into account a number of aggravating features, as articulated in DPP v Meyers. Firstly, your intention at the time of entry was to assault so as to enable you to carry out the blackmail. You knew that your entry into the premises would involve confrontation, and you had dressed yourself in a way that would mean that the occupants of the house would be more likely to comply with your demands, than if you had entered undisguised. Secondly, you entered carrying with you a weapon, the crossbow.  Finally, you entered the premises at dawn; and you knew or expected that the De Vissers would be inside the premises.

43This clearly would have been extremely frightening for Mrs De Visser. Meanwhile her husband, your uncle was in the bedroom and heard some commotion, though he would not have been well placed to assist her even had he known what was occurring, as a consequence of his ill health.

44Your conduct in demanding that Mrs. De Visser sign documents that you had prepared to further your own interests, is again indicative of there being a degree of planning, albeit that the execution of those plans was not particularly sophisticated. It is not hard to imagine that you would have very quickly been identified as either the offender, or at least the person behind the offending.

45With respect to the blackmail charge, your counsel has submitted that your demands are different to a more common example of blackmail where a demand is made for a complainant to give money which belongs to them. It is submitted in that the victim in this case did not stand to lose a great deal directly and that you interpreted your gain as only being in a position to control an estate which still benefited the entire family, as misguided as this was. In my view, your conduct is nonetheless serious with respect to the charge of blackmail, having regard to the context in which it was carried out, and the menacing way in which you conducted yourself.

Relevant sentencing factors

46I am required, pursuant to the Sentencing Act (1991) to take into account various factors when formulating an appropriate sentence in your case. The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances.

47I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.

Plea of guilty

48I take into account your plea of guilty. This was not a plea at the earliest opportunity. The matter proceeded to contested committal during which Mr and Mrs. De Visser were required to give evidence, and were cross examined on a reasonably confined basis. Nonetheless, your plea of guilty is significant. It is of significant utilitarian value. Had this matter been contested, the trial would have been substantially delayed and would have no doubt required those witnesses to give evidence again. Your plea demonstrates a willingness to facilitate the course of justice. I accept that as a result of your plea of guilty, time and resources have been spared.

49Your plea of guilty has an additional utilitarian value given that it was entered during the Covid 19 pandemic, where the court faces a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[4] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. As a consequence, you are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the Covid 19 pandemic.

[4] [2021] VSCA 169

50You have been in custody since your arrest on 13 August 2020. It is to your credit that whilst in custody you have undertaken courses related to alcohol dependence, as well as the ‘Ice and Me’ course (certificates tendered as Exhibit B). You have transitioned in custody to buprenorphine. As a consequence of you being on remand during the global Covid 19 pandemic, you have only been able to have two face-to-face visits, both from your mother. I note that Lesley De Visser was present for the plea hearing and is supportive of you.

51It is submitted and I accept, that your time in custody has been made more difficult as a result of the restrictions relating to Covid 19. You have endured various lockdowns caused by possible positive cases during which you have had no time out of your cell. You have been unable to receive visitors, and there have been few courses available to you whilst in custody. At present, there have been individuals who have tested positive in the prison system, and no doubt the anxiety surrounding this, has made your time more challenging.

Remorse

52According to Ms Cidoni, you have displayed genuine remorse for your offending. You have also prepared a letter to your aunt, which was tendered on the plea (Exhibit C), in which you have expressed what you’ve described as your true and heartfelt apology. You state that you are sorry for the trauma that you have caused the victim, and you describe feeling disappointed in yourself and your actions. Your plea of guilty is also indicative of your remorse. I accept that you are remorseful for your offending.

Prospects of rehabilitation

53It seems that the catalyst for your downward spiral, and foray into drug use, and ultimately criminal behaviour, was your father’s illness and death. This event had a profound impact upon you, given the close relationship you shared. As noted, although your prior criminal history reveals an escalation in the seriousness of offences committed, there was a period in which you managed to abstain from drug use, and there was a break in any significant offending. This seems to have coincided with your preparedness to engage in treatment with a psychiatrist, and comply with your medication for ADHD.

54Ms. Cidoni is of the view that you have a medium risk of recidivism. Factors that contribute to your risk of re-offending are drug use and abstinence from prescribed ADHD medication. Your risk of re-offending will reduce with abstinence from methamphetamine, continuation of ADHD medication and professional counselling.

55Accordingly, I consider that your prospects of rehabilitation are moderate. As I have said, abstinence from drug use will be crucial in ensuring that your rehabilitation can be successful. This is your first substantial sentence of imprisonment and I accept it will weigh heavily on you. Hopefully this time in prison will have a substantial deterrent effect on you.

General and specific deterrence

56General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that such serious criminal offending will attract significant punishment. Moreover, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history. Regrettably, you have largely been unable to take advantage of previous Community Corrections Orders, which you have breached by way of further offending. 

57Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.

Regard to current sentencing practices

58Although this is but one of the factors for consideration, I have taken into account current sentencing practices. The Court of Appeal more recently considered post-Hogarth sentences in Brown v The Queen.[5]

[5] [2021] VSCA 204

Concurrency and cumulation

59Both your counsel and the prosecution agree that there should be a degree of concurrency in the sentence imposed, given that all of the offences occurred in the one event. Your counsel submits the assault is relied on to prove the required intent for the aggravated burglary, and that this is the largely the same conduct founding the menaces in the blackmail. I do note, however that having entered the premises, you discharged the crossbow. Further, the menace aspect of your offending involves not only the use of the weapon, but this was in addition to threats that ‘bigger’ people would be coming to make Mrs. De Visser sign the document. This merits some degree of cumulation.

60I agree however, that given the overlap in the offences, there should be a substantial degree of concurrency in the sentences. I have also had regard to the principles of totality, which requires that I must ensure that the overall sentence is just and proportionate.

61Mr. Barker has submitted on your behalf that taking into account the amount of presentence detention served, that a period of imprisonment followed by Community Corrections Order is open. I cannot agree. Nor do I agree with the submission that these charges are at the lesser end of the scale of seriousness. As I have already said, I view this offending as serious. It calls for substantial punishment. In my view no other sentence but a term of imprisonment is appropriate here.

Sentence:

62On Charge 1, of aggravated burglary, you are convicted and sentenced to 4 years and 11 months imprisonment.

63On Charge 2, blackmail, you are convicted and sentenced to 18 months imprisonment.

64On the summary charge of assault with weapon, you are convicted and sentenced to 2 months imprisonment.

65On the summary charge of driving whilst disqualified, you are convicted and sentenced to 1 month imprisonment.

66Charge 1, the charge of aggravated burglary, will be the base sentence. Six months of the sentence on charge 2 will be cumulative on the sentence for charge 1.

67One month of the sentence on the summary charge of assault with weapon will be cumulative on Charge 1 and the degree of cumulation on Charge 2.

68The sentence imposed on the charge of driving whilst disqualified will be concurrent with Charge 1.

69That makes a total effective sentence of 5 years and 6 months imprisonment.

70I fix a non-parole period of 3 and a half years imprisonment.

71Pursuant to s 18 of the Sentencing Act 1991, I declare 440 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

s. 6AAA

72Pursuant to s6AAA of the Sentencing Act (1991),  had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of 6 years and 8 months imprisonment with a non-parole period of 4 years and 6 months.

Ancillary orders

73I make the order for forfeiture sought with respect to the various items seized during the investigation as set out in the Schedule of the Order, and this was by consent.