Director of Public Prosecutions v Werner

[2021] VCC 2063

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

SALMAN WERNER (A PSEUDONYM)

---

JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2021
DATE OF SENTENCE:	10 December 2021
CASE MAY BE CITED AS:	DPP v Werner
MEDIUM NEUTRAL CITATION:	[2021] VCC 2063

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence — use carriage service to menace, harass or cause offence — aggravated burglary — drive while disqualified — plea of guilty — early plea — no criminal history — intimate relationship — relationship breakdown — new partner — telephone calls — text messages — threats — psychological report — remorse — victim-blaming — victim impact statement — family violence — moral culpability — stress — COVID-19 — deportation — character reference — prospects of rehabilitation — low risk of reoffending — general deterrence — specific deterrence — just punishment — denunciation — community correction order — combined sentence

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence of 15 months’ imprisonment and 18-month community correction order

Section 6AAA declaration: three and a half years with a non-parole period of two and a half years

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Crouch	Solicitor for the Office of Public Prosecutions
For the Accused	Mr N Leslie	PLS Lawyers

HER HONOUR:

1Salman Werner,[1] you pleaded guilty to one charge of using a carriage service to menace, harass or cause harm, for which the maximum penalty is three years’ imprisonment. You’ve also pleaded guilty to a charge of aggravated burglary, for which the maximum penalty is 25 years’ imprisonment, and to the summary charge of driving while disqualified, for which the maximum penalty is a term of imprisonment of two years. You have no criminal history.

[1] A pseudonym.

2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief, the circumstances of your offending were as follows. The victim is Greta Phan.[2] She had been in an intimate relationship with you, but the relationship had ended and she had gone on to become engaged to another man named Mario Acosta.[3] This clearly upset you. On 1 April 2021, you began making threats to Ms Phan. In the first call, which is part of charge 1, you said to her, ‘I am going to come to your house, in front of your friend, I am going to hit you’, and you made a threat about her fiancé. Ms Phan said that she wanted to ‘stop everything’ and ‘live peacefully’, but you replied that it was ‘too late’.

[2] A pseudonym.

[3] A pseudonym.

3On 17 May 2021, you sent the following text message to her at 8:18am: ‘Astrid[4] told me what you said to her. You pretend that you had enough. If you had enough of me, how much I would have enough of you for the things you have done to me. This time I will do something to teach each of your people’. There were further messages at 8:10am which were threatening. At 8:21am, you sent a further text: ‘I thought I wouldn’t do anything to you. But you blocked me without looking at anything’. At 8:22am, you texted: ‘watch out for what is certainly going to happen’.

[4] A pseudonym.

4On 18 May 2021, you sent the following text message to the victim at 12:10am: ‘See what will happen when you wake up tomorrow morning’. On 21 May 2021, you sent the following message through Facebook to the victim at 7:25am: ‘I will tell you what I will do to you. If you can you go ahead and stop. If you want to know give a call at 11 today. If not, you can get to know when Mario call you. Even grandmothers should know about the eldest daughter’. So, they are the text messages which make up charge 1.

5Turning now to charge 2, the aggravated burglary, at about 1:30pm on 21 May, Ms Phan contacted a friend and told her she was concerned about the messages you were sending her. The friend came to Ms Phan’s home to offer support. Ms Phan also spoke with another female friend with whom she was living. At 2:21pm, you sent Ms Phan a message saying you would come to her house no matter what she did. Ms Phan rang the Triple Zero service.

6Sometime after, you arrived at the house and started knocking on the door. The three women present were frightened. At 3:20pm, Ms Phan again contacted Triple Zero. She was advised that police would attend urgently. By now, you were trying to gain access to the house via the garage. Ms Phan and the other two women were in the bedroom together with the door closed. At 3:42pm, internal CCTV shows you entering the victim’s kitchen after entering through the back door, then moving up the internal stairs. The women heard you walking up the stairs and saying words to the effect of ‘Greta, open the door’, and you were also saying, ‘you are messing with the wrong person, I am going to hit you, I am going to slap you and break your ear’. You then loudly knocked on the bedroom door.

7The police arrived at about 3:50pm. You attempted to flee but were arrested. You had a car key which fitted a car parked outside the victim’s home. Subsequent checks confirmed that you did not hold a current Victorian driver’s licence, and that is the summary matter.

8You participated in a record of interview. You admitted that you went to the victim’s home because she had cheated on you and she had another boyfriend. You denied threatening her. You said you merely scolded her.

9You pleaded guilty at a committal mention on 29 September 2021. This is an early plea. It is of significant utilitarian value in the context of the delays and disruptions caused to the administration of justice in this State by the COVID-19 pandemic, and the measures put in place to deal with it.

10I am not prepared to find that your plea is indicative of remorse on your part. You met with the psychologist Mr Edwin Kleynhans in August and he prepared a report which was tendered at your plea. When you spoke with him, as late as August of this year, you were persisting in victim blaming and in downplaying your now admitted criminal conduct. And again, only last week, when I had you assessed for a community correction order, you continued to blame the victim and failed to express any remorse. So all of this, in my view, precludes a finding of full and insightful remorse on your part.

11Ms Phan has made a victim impact statement in which she says that your offending has caused her ongoing fear. She can no longer be in her home alone. She has trouble working, studying and sleeping. She is on medication for anxiety, depression and stress. She says the incident still causes friction between her and her partner.

12You should be ashamed of yourself for the way you treated Ms Phan, and the suffering that you have caused her. She had every right to end her relationship with you, and it appears she tried to deal with you politely and courteously, even when you were threatening her. You, on the other hand, had no right to behave as you did. You subjected her to ongoing threats and, most seriously, you attended at her home with the intention of assaulting her. Aggravated burglary is a very serious offence. It carries a maximum penalty of 25 years’ imprisonment. The law recognises that people have a right to feel safe in their homes and that unwanted intruders destroy a person’s sense of security and wellbeing connected with the home.

13Your offending against Ms Phan is furthermore a crime of family violence. You acted in retribution for Ms Phan ending the relationship. Male aggression and violence towards former female partners in the context of relationship breakdown is not to be tolerated and while it may explain your offending, it in no way justifies it.

14On the other hand, your offending was only over a relatively short period of time, and in respect of your attendance at Ms Phan’s home, you did not commit any acts of violence and the incident was of short duration. I regard your offending, as best as I can characterise it, as a mid- to low-range example of each of the offences. However, I regard your moral culpability as high, for the reasons I have expressed.

15I now turn to your personal circumstances. You are presently 26. You came to Australia to study. You are enrolled in a hospitality course and you have also enrolled at the Victorian College of the Arts for a diploma in dance, film and television. You have done some acting and are now interested in performing. In your home country, you worked in your father’s hospitality business and you also served as a cadet.

16Tendered on your plea was a character reference from an executive chef from your home country. He says he always found you to be an upright character. A reference was also tendered from a director at a design agency who directed you in a short film. He says he found you to be an honest and trustworthy person.

17Mr Leslie, who appeared on your behalf, submitted that you were highly stressed at the time of your offending, as both your parents were ill with COVID-19. He submitted that your father remains ill and the family business is suffering. He submitted that your family’s situation will weigh heavily on you during any term of imprisonment.

18You are not an Australian citizen and face mandatory deportation at the conclusion of a term of imprisonment greater than 12 months. Mr Leslie submitted that while you are not sure whether or not you would like to stay in Australia in the long term, you were hoping to complete your studies here. You will therefore experience some relatively minor loss of opportunity to stay in Australia for the duration of your studies. Nevertheless, I give some modest weight to this lost opportunity and to the anxiety connected with deportation hanging over your head during the sentence of imprisonment.

19Prison will be a difficult place for you for a number of reasons and in a number of respects, given your age, your isolation from your family and English not being your first language, and all in the context of the current restrictions necessitated by the COVID-19 pandemic. Mr Kleynhans also found you to be currently suffering from stress and anxiety, and I take this into account in sentencing you, although it was not submitted that any Verdins principles were engaged in sentencing you.[5]

[5] R v Verdins (2007) 16 VR 269.

20While it appears to me that you lack insight into your offending and you lack remorse for what you have done, I am nevertheless prepared to find your prospects of rehabilitation are good. This is the first time you have been involved in the criminal justice system and, in your case, this has involved you spending a period of time in custody. Surely this will be a wake-up call to you and you will refrain from offending in the future. You were assessed as a low risk of reoffending by Corrections during your assessment for the community correction order.

21The principles of general and specific deterrence, just punishment and denunciation are all engaged in sentencing you. It was the joint submission of the parties that the seriousness of your offending called for a period of actual custody, but that it was open to me to combine an immediate custodial sentence with a community correction order. I had you assessed by Corrections to this end, and you were assessed as suitable. I was assisted by the prosecutor, Mr Crouch, in formulating a sentence which always involves some complexity when there are State and Commonwealth offences together.

22I intend to sentence you as follows. You are convicted on all charges, State and Commonwealth, indictable and summary. On the state charges, on charge 2, you are sentenced to a term of imprisonment of 15 months. On summary charge 1, you are sentenced to a term of imprisonment of one month, but that is to be served concurrently. That is a sentence of 15 months on the State charges. On charge 1, which is the Commonwealth charge, you are sentenced to an 18-month community correction order with 150 work hours, and I will go through the conditions of that shortly. That makes a total effective sentence of 15 months.

23Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 203 days of the sentence I have passed upon you, and I direct that this be entered into the records of the Court.

24Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three and a half years with a non-parole period of two and a half years.

25Alright, let me just explain what has happened, Mr Werner. Mr Werner, you have been in prison 203 days. That makes about nearly seven months; let us say six months. I have sentenced you to 15 months’ imprisonment, less around six months, so you have got about eight and a half/nine more months of custody. When you’ve served that, you are then going on to what is called a community correction order.

26So that will begin after the completion of your period in custody, and it will last for 18 months. Within two days of you being released from custody, you are to report to Community Correctional Services. The mandatory terms are that you are not to commit any offences during that 18-month period. That goes without saying. Any offence which may attract a period of gaol, and most offences potentially attract a period a gaol. So, no offending. You are to comply with all obligations prescribed by Corrections, so whatever the officers or the workers from Corrections tell you to do, you need to follow their instructions. You are to receive visits from them. You are to report to them within two clear working days of any changes to your address or your job. You must not leave the State of Victoria without permission, and you are to obey all lawful directions.

27You will have to perform 150 hours of community corrections work. I am ordering that you will be supervised by Corrections. I am ordering that you are to undergo mental health assessment and treatment, which may include psychological or neuropsychological treatment, or psychiatric treatment, and you are to participate in any programs and courses that may address factors relating to your offending. Fifty hours of any courses, counselling, etc, that you do on the order can be credited as work hours. So, if you do the courses and the treatment that is set by Corrections, if you do 50 hours of that, that can be credited to your work hours.

- - -