Director of Public Prosecutions v Wright & Evans
[2023] VCC 375
•1 March 2023 & 17 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01058 & CR-22-01059
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN WRIGHT & BROOKE EVANS |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2023 & 8 February 2023 | |
DATE OF SENTENCE: | 1 March 2023 & 17 March 2023 | |
CASE MAY BE CITED AS: | DPP v WRIGHT & EVANS | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 375 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Home Invasion – category 2 offence - damaging property and other non-category 2 offences – youthful co-offenders – parity – exceptional circumstances present in respect of one but not the other – family hardship – effect of s 44(1) of the Sentencing Act 1991
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Bail Act 1977 (Vic)
Cases Cited:R v Hogarth [2012] VSCA 314; DPP v Bowden [2016] VSCA 283; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; Markovic v The Queen [2010] VSCA 105; DPP v Lombardo [2022] VSCA 204; Adkins v The King [2023] VSCA 23
Sentence: Brendan Wright: TES – 30 months’ imprisonment; non-parole period 15 months
s 6AAA -3 years and 4 months’ imprisonment; non-parole period 22 months
Brooke Evans: CCO for 2 years.
s 6AAA – 6 months’ imprisonment and 12 month CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Dane | Office of Public Prosecutions |
| For the accused Wright For the accused Evans | Mr S. Kelly Ms K. Hartman | Stary Norton Halphen Greg Thomas |
HIS HONOUR:
1Brendan Wright and Brooke Evans, you have each pleaded guilty to one charge of home invasion contrary to s 77A of the Crimes Act 1958 and one charge of damaging property contrary to s 197(1) of the same Act. These offences carry maximum penalties of 25 years’ imprisonment and 10 years’ imprisonment respectively.
2Brendan Wright, you have also pleaded guilty to one charge of common law assault contrary to common law and one charge of theft contrary to s 74 of the Crimes Act. These offences both carry a maximum penalty of 10 years’ imprisonment.
3In addition, you have both pleaded guilty to two related summary offences: one charge of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment; and one charge of failing to appear in accordance with bail contrary to s 30(1) of the same Act, which has a maximum penalty of 2 years’ imprisonment or 240 penalty units.
4You are to be sentenced on the basis of the prosecution opening for plea dated 3 January 2023, which is an agreed summary. The following summary of your offending is drawn from this document.
Circumstances of offending
5The circumstances of your offending concern a booking that Ms Evans made at the Beaumont Kew Hotel on 8 January 2022. The booking was made at a negotiated reduced rate due to water damage to the room. At this time Ms Evans and Mr Wright were in a relationship and were unemployed.
6At approximately 8 pm on the evening of 8 January, the hotel manager, Jodie Dowker, received a complaint about noise coming from Ms Evans’ room and called the police. Police officers arrived at the scene just before 9 pm, confirmed the identities of Ms Evans and Mr Wright, and identified that there were outstanding arrest warrants for failing to answer bail for both of them (Related summary offence – failing to appear in accordance with bail).
7Police evicted Ms Evans and Mr Wright from the room and bailed them at the scene in relation to the outstanding arrest warrants. They were left at the scene and the police departed sometime after 9.00 pm.
8It is unclear what Ms Evans and Mr Wright did between that time and 10.20 pm.
9At approximately 10:20 pm, Ms Dowker was with her partner, Timothy Roles, and her daughter, Krya Mansell, in their unit at the hotel premises, which doubles as both a reception area and Ms Dowker’s permanent residence. She heard a commotion and sounds of yelling and swearing coming from outside the unit. Mr Mr Wright was banging on the door and Ms Evans was yelling demands for Ms Dowker to return the deposit for the room.
10Ms Dowker opened the door of the unit and asked Ms Evans and Mr Wright to leave. In response, Ms Evans threatened to kill Ms Dowker, stating ‘You’re a fucking dog and I want my deposit back … I’m going to kill you. I’m going to kill your daughter and everyone in the house’. Ms Evans is not charged any offence in relation to these threats.
11Mr Wright then punched Ms Dowker in the face (Charge 2 – common assault), prompting Ms Dowker’s partner, Mr Roles, to use a piece of wood to strike Mr Wright. Ms Dowker, Mr Roles and Ms Mansell pushed the door closed and placed their weight against it to hold it shut. Mr Wright and Ms Evans continued to bang on the door in an apparent attempt to break it down.
12Mr Wright picked up a large plank of wood from a nearby bush and used it strike and break two windows of the unit (Charge 3 – criminal damage). Mr Wright began to pull himself through the window into the unit and seized an iPhone from the reception desk (Charge 4 – theft). Meanwhile, Ms Dowker called the police.
13At Ms Dowker’s direction, Ms Mansell barricaded herself in the bathroom. Ms Dowker and Mr Roles retreated to their bedroom and locked the door. Ms Evans then climbed through the smashed window to join Mr Wright inside the unit (Charge 1 – home invasion).
14With Ms Evans’ encouragement, Mr Wright then attempted to break down the bedroom door with the plank of wood. After hitting the door with the plank of wood several times, Mr Wright made a hole in the door, and Mr Wright put the plank of wood through the hole where it was seized by Mr Roles. Through the hole Roles observed Mr Wright throw a lamp at the door. Other damage to the unit caused by Mr Wright and Ms Evans included a broken curtain (Charge 3 – criminal damage).
15A short time thereafter, police arrived at the scene and used capsicum spray to subdue and arrest Mr Wright and Ms Evans inside the unit.
Objective seriousness of the offence of home invasion
16Home invasion is an inherently serious offence which attracts a maximum penalty of 25 years’ imprisonment. This maximum reflects the strong disapproval with which the community views acts of this brutality which strike fear into law abiding citizens by violating the sanctity of their homes.
17As the courts have repeatedly emphasised, home invasion ‘is a particularly nasty form of criminal conduct’ and a terrifying experience for victims.[1] In this regard, Kyra Mansell’s Victim Impact Statement attests to the horrifying experience that you inflicted upon her family. She states that ‘when this horrible situation started unfolding there was a point that I was really scared they were going to kill me; I had no idea what their intentions or capabilities were … I felt absolutely terrified’.[2]
[1] R v Hogarth [2012] VSCA 314 at [1].
[2] Victim Impact Statement of Kyra Mansell dated 11 January 2023.
18In assessing the gravity of the home invasion, I note that the offending was attended by the following features:
i.It occurred at night;
ii.Mr Wright used a weapon, namely a wooden plank, which ‘markedly increases the objective gravity’,[3] although I note that Mr Wright acquired the plank spontaneously in the course of the commission of the offence;
[3] DPP v Bowden [2016] VSCA 283 at 30.
iii.The offenders were aware that the three victims were inside the unit and intended to exact revenge for a perceived wrong;
iv.Mr Wright’s method of entry into the unit was violent;
v.Mr Wright physically assaulted Ms Dowker;
vi.The home invasion was accompanied by numerous and repeated threats;
vii.The offending was moderately protracted - extending as it did over approximately 8 minutes - involved significant property damage and persistent attempts to break down Ms Dowker’s bedroom door;
viii.The victims were in fear of their lives;
ix.Both offenders were on bail at the time of the offending; and
x.Mr Wright was subject to an 18-month community correction order which commenced on 27 September 2020.
19Several of these factors – namely, Mr Wright’s possession of a weapon, the state of mind of the offenders regarding the presence of the victims and the offenders’ intent to perpetrate harm upon them – form part of the elements of the offence. Accordingly, they cannot be properly characterised as aggravating features of the offence of home invasion. Similarly, as the common assault and property damage are the subject of charges 2 and 3 respectively, these acts are also not to be regarded as aggravating features of the offence.[4]
[4] See generally R v Wol Wol [2019] VSCA 268 at [60].
20On the other hand, I note that it is not open for me to make any inferential findings as to the instigation of this offence. The prosecution submitted that ‘intent and planning’ can be inferred from the period of time that passed between leaving the property and returning 1.5 hours later.[5] However, I am unable to conclude beyond reasonable doubt that any significant degree of premeditation attended the commission of the home invasion.
[5] Addendum Crown Submission on Sentence dated 10 February 2023 at [1]
21Nevertheless, having regard to the manner in which this offence was committed, and the features outlined previously which constitute aggravating factors, I consider this to be a reasonably serious example of the offence of home invasion. It lacks the aggravating feature present in many such cases of the offenders arriving at the home armed with a knife or gun.
22Offending of this kind – in company, with a weapon, and committed in a misplaced attempt to revenge a perceived wrong through the exercise of vigilante justice – must attract significant punishment.[6] As the Court of Appeal stated in the case of Taleb v The Queen,[7] in creating the separate offence of home invasion, ‘the legislature has sent the clearest message to sentencing courts - and to would-be offenders - as to how seriously such offending is to be viewed.’[8]
[6] Taleb v The Queen [2020] VSCA 329 at [33].
[7] [2020] VSCA 329.
[8] [2020] VSCA 329 at [33].
23As is apparent from the charges before the court, Mr Wright’s overall moral culpability is greater than that of Ms Evans. He has pleaded guilty to additional charges. Further, his role in the home invasion was more pronounced. It was Mr Wright who located and used the weapon and it was Mr Wright who broke the window and attempted to break down the door. I therefore consider that Mr Wright’s moral culpability for the most serious offence of home invasion is greater than that of Ms Evans. Having said that, I also consider that through her encouragement of Mr Wright, Ms Evans’ moral culpability for the offending is significant.
Personal circumstances - Mr Wright
24Brendan Wright, you were born in August 1999 and are now aged 23. Your parents separated when you were a small child, and you lived with your mother in Rowville until adulthood.
25Despite residing with your mother throughout your entire childhood, you have maintained regular and frequent contact with your father and have a close relationship with your two older siblings.
26Your schooling was disrupted by your behavioural issues, and you were expelled from high school before completing Year 9. Since that time you have worked a variety of different jobs, including roof tiling, demolition, labouring and, most recently, furniture removal. Your employment has, however, been disrupted by persistent drug use.
27You have reported to the psychologist Sandra Cokorilo that you first began experimenting with substances at age 13, when you began to drink alcohol, use cannabis and smoke methamphetamine.[9] Your use of methamphetamine escalated as you got older; and from the age of 15 you began to smoke that substance daily. You reported to Ms Cokorilo that, at the time of the offending currently before the court, you were sleep deprived and affected by methamphetamine and alcohol.[10] In addition, you have at times experimented with a variety of other recreational drugs such as cocaine, heroin, and LSD.
[9] Report of Sandra Cokorilo dated 17 January 2023, 37-41.
[10] Report of Sandra Cokorilo dated 17 January 2023, 50.
28At the time of the offending and at present, Ms Cokorilo opines that you met the criteria for Cannabis and Stimulant Use Disorders, which has likely affected your higher executive functions – such as self-control and decision making – propensity for aggression, and cognitive functioning.[11]
[11] Report of Sandra Cokorilo dated 17 January 2023, 91.
29Ms Cokorilo’s report states that you present with a profile of compromised mental health. Ms Cokorilo reports that you ‘described symptoms consistent with Major Depressive Disorder (MDD) at the time of offending’ - although your depression appeared to be ‘in partial remission’ at the time of writing – and further diagnoses you with Generalised Anxiety Disorder.[12] I note that your counsel did not seek to rely upon the principles enunciated by the Court of Appeal in the case of Verdins v The Queen[13] as a mitigating factor in your case.
[12] Report of Sandra Cokorilo dated 17 January 2023, 92, 87.
[13] (2007) 16 VR 269.
30The court received two character references about you. Your former employer, Mark Fox of Yarra Valley Caviar enjoyed having you as part of his work team in 2022.[14] Your work was of the highest standard. Another of your former employers, Brodie Gibbons of Dawson Moving & Storage, describes you as a reliable and friendly individual.[15]
[14] Letter from Mark Fox dated 17 June 2022 (exhibit D3).
[15] Letter from Brodie Gibbons dated 20 January 2023 (ex D4).
31You have admitted a limited criminal history for several offences dating back to May 2019. Of most significance for this case are the convictions recorded in September of 2020 for burglary, theft and intentionally damaging property.
32You have not disclosed any further antisocial cognitions or pro-criminal attitudes and you presented to Ms Cokorilo with a level of insight into the relationship between your drug use and your offending.[16] I also accept, on the basis of your plea of guilty and your disclosures to Ms Cokorilo, that you are genuinely remorseful for your offending behaviour.[17]
[16] Report of Sandra Cokorilo dated 17 January 2023, 56 & 99-100.
[17] Report of Sandra Cokorilo dated 17 January 2023, 52.
33Ms Cokorilo stated, however, that ‘Mr Wright’s risks are considered moderate on the basis of his criminal priors, history of polysubstance abuse psychosocial adversity, and compromised mental health … The concern is that he does not recognise the need for treatment and that he lacks internal resources and external supports to reform his lifestyle unless he is adequately supported.’[18]
[18] Report of Sandra Cokorilo dated 17 January 2023, 99-100.
34Since you were granted bail, you have completed 10 sessions of drug and alcohol counselling with Ms Heers from the Salvation Army.[19]
[19] Defence Outline of Plea Submissions (Evans) dated 16 January 2023, [28].
35The court received a breach report dated 10 November 2021 from Corrections Victoria.[20] It concerns the Community Correction Order (CCO) you were placed on in September 2020. You allegedly breached that order for both conditions and alleged further offending. You were resistant to drug treatment and your offending before the court was during the life of the order.
[20] Exhibit P3.
36I consider that your prospects for rehabilitation will depend on two key factors: first, your ability to abstain from substance abuse - in particular, to abstain from using methamphetamine; and second, your willingness to engage with psychological interventions to promote insight into your underlying mental health issues and support the development of functional coping strategies. I consider those prospects to be guarded at this time in light of the above.
Personal circumstances - Ms Evans
37Ms Evans, you are now 25 years old. Your childhood was marred by alcohol use and exposure to both drug use and family violence. Ms Cidoni, psychologist, describes your childhood as involving ‘a history of neglect, instability, and negative output from a very young age’.[21]
[21] Report of Ms Gina Cidoni dated 11 January 2023, [99].
38Your mother was a drug addict and was abusive towards you. Ms Nielsen, a counsellor who has provided you with treatment, states that your mother was ‘unable to provide a safe, predictable and calm environment for [you]’.[22]
[22] Report of Carmel Nielsen dated 20 January 2023, p 1.
39Your mother introduced you to alcohol when you were 14. Soon after that you moved out of home and lived with a friend and her family. You regularly consumed alcohol until you were 17. Your mother’s abuse led to police involvement and a family violence intervention order to protect you.
40At about this time, you became entangled in the criminal justice system. In 2015 you were dealt with in the Ringwood Children’s Court for offences of assault, make threat to kill and assaulting a police officer. In 2017, you again appeared in the Ringwood Children’s Court, in breach of your probation order on a further charge of assault.
41You attended school up to year 11 but you were expelled due to not completing homework. You completed year 12 Vic Cert of Applied Learning and have completed Certificates III and IV in Animal Studies.
42In 2018 you volunteered with the RSPCA but this ended in 2020 due to the pandemic.
43More recently, you have taken up a casual position in the Shark Tank Seafood Shop in Templestowe where you work a couple of times a week. The owner of that business is aware of these charges and describes you as a very strong minded young woman of integrity and honesty. He states that you have a generous heart and notes the care you provide for your sick mother. He describes you as reliable and hardworking and a ‘joy to be around’. He concludes that it is ‘certainly an honor [sic.] Brooke is part of my business and community’ and he will support you to be an active member of society.[23]
[23] Exhibit D6
44Your mother has been diagnosed with Stage 4 Ovarian Cancer. You visit her regularly and support her.
Recent Developments
45You were released on bail in relation to this offending on 16 February 2022. In the 12 months since then, there are some positive signs. Ms Cidoni says that you have ‘made considerable gains to turn [your] life around, including engagement in treatment and caring full-time for [your] mother who is very unwell’.[24]
[24] Report of Ms Gina Cidoni dated 11 January 2023, [99].
46Central to this has been the counselling you have very recently received from Ms Carmel Nielsen. Previous sessions with Jacinta Anderson earlier in 2022 were not pursued due to the expense.
47In a report to the Court dated 20 January 2023, Ms Nielsen explains that you have been actively engaged in counselling with her since 16 November 2022 and have completed three self-funded counselling sessions. Ms Nielsen explains that you have exhibited a positive attitude and participated actively in the sessions.
48She describes your treatment prognosis as good provided you continue to engage in counselling sessions and practise recommended healthy coping strategies. She states that you are determined to improve your current circumstances and maintain a law-abiding lifestyle.
49While I note that this assessment is based on exposure to you on only three occasions over a two month period, these are positive signs.
50Another positive development has been your involvement with Access Health and Community where you have received counselling concerning your use of alcohol and other drugs. You have been receiving such services since March 2022 and, at your most recent session on 10 January 2023, you stated that you had not consumed alcohol for approximately 3 months. Hayden Witting, Youth AOD Clinician, states that you have shown great motivation and commitment and you have shown remorse and regret for your conduct that led to these charges.[25]
[25] Report from Hayden Witting, Youth AOD Clinician dated 17 January 2023.
51Ms Cidoni opines that, because you are receiving regular counselling and have been abstinent from alcohol and other drugs, your risk of reoffending is low.[26]
[26] Report of Ms Gina Cidoni dated 11 January 2023, [109].
52In relation to your remorse, I have received in evidence an apology letter that you have written.[27] In light of this letter – especially when considered in combination with your expressions of remorse to Ms Nielsen and Mr Witting - I accept that you are deeply remorseful for your actions and have taken steps to take responsibility for the pain and suffering that you have inflicted upon the victims of your offending.
[27] Exhibit D12.
53Your progress is impressive and reveals a real desire to live a law-abiding life. In the circumstances, and with some hesitation because of your history, and noting that Corrections have assessed you as a ‘high risk of re-offending’,[28] I assess your prospects of rehabilitation as moderate at best. What is clear is that this Court should not sentence you in a way that undermines your progress; on the contrary, the sentence the court imposes should promote your rehabilitation.[29]
[28] Community Correction Order assessment report dated 13/2/23 at p 2.
[29] Sentencing Act 1991, s 5(1)(c).
Matters in mitigation common to both offenders
54You both pleaded guilty at the committal case conference stage. This has spared the victims of your offending the ordeal of giving evidence, preserved the resources of the of criminal justice system, and vindicated public confidence in the legal processes established to protect the community.[30]
[30] Phillips v The Queen [2012] VSCA 140 at 38.
55In the context of the ongoing disruption inflicted upon the courts by the COVID-19 pandemic, your pleas are of particular utilitarian value and I have moderated your sentences accordingly.[31] In addition, by pleading guilty I consider that you have both displayed some degree of remorse for your offending.
[31] Worboyes v The Queen [2021] VSCA 169 at 35 & 39.
56The relative youth of Mr Wright and Ms Evans is also a significant consideration in this sentencing exercise.
57In the case of R v Mills,[32] the Victorian Court of Appeal endorsed several general propositions about sentencing youthful offenders. There are two principles that have particular application in this case:
i.First, that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises; and
ii.Second, in the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment and incarceration in an adult prison may in fact lead to further offending. [33]
[32] R v Mills [1998] 4 VR 235.
[33] R v Mills [1998] 4 VR 235 at 241 per Batt JA (with whom Phillips CJ and Charles JA agreed).
58In the same year that Mills was handed down, the Court of Appeal also acknowledged that the propositions in that case, while applied frequently, are not of universal or automatic application;[34] in some cases, factors such as youth and rehabilitation are to take a ‘back seat’ to other sentencing considerations.[35] In particular, youth must be give less weight in the sentencing synthesis for serious offences.[36]
[34] Azzopardi v The Queen [2011] VSCA 372, [38] citing R v Wright [1998] VSCA 84, [6].
[35] Azzopardi v The Queen [2011] VSCA 372.
[36] Director of Public Prosecutions v Lawrence [2004] VSCA 154, [22].
Factors in mitigation - Ms Evans
59I turn now to discuss factors in mitigation personal to you Ms Evans.
60I consider that the social disadvantage you experienced as a child enlivens the principles enunciated by the High Court in the case of Bugmy v The Queen.[37]
[37] Bugmy v The Queen [2013] HCA 37.
61In that case the High Court articulated two different ways that childhood deprivation may be relevant in assessing an offender’s moral culpability.[38] The first – more general – proposition was in the following terms:
‘The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’[39]
[38] See generally discussion in Direction of Public Prosecutions v Herrmann [2021] VSCA 160, [36]; Newton v The King [2023] VSCA 22, [36].
[39] Bugmy v The Queen [2013] HCA 37, [40].
62The second – more specific – proposition is as follows:
i.‘An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.’[40]
[40] Ibid [44].
63I consider that the ‘general’ approach has application in these circumstances. Although I do not believe that there is a direct causal nexus between your childhood deprivation and the offending currently before the Court, the disadvantage you experienced as a child was profound and lasting. It has played a significant role in shaping your personality and led to the development of substance abuse as an early maladaptive coping mechanism,[41] and ultimately operates to moderate your moral culpability for this offending. Although your childhood experiences do not excuse your offending behaviour, I give them due weight in the sentencing calculus.[42]
[41] Report of Ms Gina Cidoni dated 11 January 2023, [106].
[42] Marrah v The Queen [2014] VSCA 119, [16].
64These considerations are complicated by your complex mental health presentation. Ms Cidoni diagnoses you with borderline personality disorder, post-traumatic stress disorder, and alcohol use disorder.[43] She opines that the psychological consequences of these conditions ‘include anger problems, anxiety, depression, dissociation, impulsivity, interpersonal problems, suicidal ideation, and an increased incidence of substance abuse.’[44]
[43] Report of Ms Gina Cidoni dated 11 January 2023, at [101].
[44] Report of Ms Gina Cidoni dated 11 January 2023, [104].
65It is well established that an offender's culpability may be diminished due to the their impaired mental functioning. In R v Verdins,[45] the Court of Appeal explained that impaired mental functioning, if demonstrated to have a ‘realistic connection’ with the offending, 'may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility'.[46]
[45] R v Verdins (2007) 16 VR 269.
[46] Verdins (2007) 16 VR 269 at [32].
66In this case, Ms Cidoni identifies a direct causal link between your mental diagnoses and this offending, stating that your ‘lack of self-control in terms of the offending is linked to her mental illness including BPD and PTSD as these conditions affect her ability to regulate and manage her emotional states and impulses.’[47]
[47] Report of Ms Gina Cidoni dated 11 January 2023, [107].
67On the basis of this expert evidence, I consider that your moral culpability is reduced by virtue of these diagnoses, and, accordingly, that the need for both specific and general deterrence is to be moderated somewhat. I note for completeness that in making this assessment I have been mindful of the need to ‘avoid inappropriate doubling up’ of this mitigation with the discount afforded by the application of the Bugmy principles.[48]
[48] DPP v Herrmann [2019] VSCA 160 at [82]; R v Nolan [2020] VSC 416 at [43].
68I also consider that limb 5 of Verdins has application in this case. In relation to limb 5, Ms Cidoni states that imprisonment will weigh more heavily upon you than an individual without your mental health conditions.[49] Furthermore, treating counsellor Ms Carmel Nielsen, whose report dated 20 January 2023 is also in evidence before me, expresses the view that ‘imprisonment would have a severe impact on Miss Evan’s mental health, personal development and future behavioural outcomes.’[50] I have taken this into account in your favour in mitigation of sentence.
[49] Report of Ms Gina Cidoni dated 11 January 2023, [110].
[50] Report of Ms Carmel Nielsen dated 20 January 2023.
Family hardship
69Ms Evans, central to your counsel’s submissions that you should not be imprisoned is the daily care you are providing for your mother who has stage 4 ovarian cancer.
70Your mother, Ms Mato, gave evidence in person on 8 February 2023 and was cross examined by Ms Dane the prosecutor. She described the vital care you provide for her on a daily basis while you live under the same roof.
71I am satisfied on the basis of your mother’s evidence that the daily personal care you are currently providing for her is vital to her health and wellbeing. I accept her evidence that there is no other person who can provide the level of care she needs.
72Family hardship is generally only a mitigating circumstance in sentencing if it will cause ‘exceptional hardship’.[51] To establish exceptional hardship, an accused must produce ‘cogent evidence’. The evidence must establish that the situation is so exceptional that ‘it would be, in effect, inhuman’ to take it into account.[52]
[51] Markovic v The Queen [2010] VSCA 105.
[52] R v Esposito [2009] VSCA 277 at [14].
73The principle is applied ‘as an exercise of mercy properly extended by the court in such a case’.[53] The Court of Appeal has recognised that ‘there must always be a place for the exercise of mercy where the circumstances warrant it’. This is because ‘justice and humanity walk together’.[54]
[53] Kovacevic v The Queen [2021] VSCA 49 at [53].
[54] Akoka v The Queen [2017] VSCA 214 at [74].
74I am satisfied that the onerous test of ‘exceptional hardship’ is made out in your case Ms Evans. The deleterious impact on the health of Ms Mato is considerably more severe than the normal impact of a family member being imprisoned. Despite the serious nature of your offending, the circumstances of your case warrant the exercise of mercy.
Relevant sentencing principles
75Home invasion contrary to s 77A of the Crimes Act is a category 2 offence. Pursuant to s 5(2H) of the Sentencing Act 1991, the court must impose a term of imprisonment unless one or more of the circumstances set out in subsections (a) – (e) are engaged.
Section 5(2H) and Family Hardship
76As noted, because the first charge on the Indictment constitutes a category 2 offence, s 5(2H) of the Sentencing Act 1991applies. That section relevantly provides:
"In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 [i.e. a custodial order] (other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with section 44) unless—
....
(c) the offender proves on the balance of probabilities that –
(i) … at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making a [custodial order] ..."
77There are other provisions in s 5 of the Sentencing Act that apply:
(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
(2 I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence, only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order, in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
(3) Subject to subsection ... (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
78Ms Evans, your counsel relied on the exceptions in paragraphs (c) and (e) of s 5(2H). It is contended on your behalf that both limbs of paragraph (c) are satisfied and that there are ‘substantial and compelling circumstances that are exceptional and rare’ within the meaning of paragraph (e). I will address each argument in turn.
79S 5(2H)(c)(i) requires an offender to establish that she has impaired mental functioning that is causally linked to the offence and substantially and materially reduces her moral culpability. Reliance in your case is placed on paragraphs 104 and 107 of the report of Ms Cidoni. At paragraph 107, Ms Cidoni opines that Ms Evans’ ‘lack of self-control in terms of the offending is linked to her mental illness including [Borderline Personality Disorder] and PTSD as these conditions affect her ability to regulate and manage her emotional states and impulses’.
80I consider that this evidence falls short of what is required to enliven paragraph (c)(i). I have determined earlier in these reasons that your moral culpability for your offending is somewhat reduced by reason of the mental illnesses from which you were suffering at the time. However, paragraph (c)(i) requires more than this as you must also demonstrate that your moral culpability is ‘substantially and materially’ reduced by that reason. This is a higher hurdle than that set by Verdins.[55]
[55] Peers v The Queen [2021] VSCA 264 at [52]. Although the Court was there considering paragraph (c)(ii), the phrase ‘substantially and materially’ appears in both sub-paragraphs.
81Similarly, I do not accept that Ms Cidoni’s opinion at paragraph [110] of her report that your ‘disturbance and particular traits mean [you] could reach an easily heightened state of arousal in a prison’ satisfy the onerous requirements of para (c)(ii).
82Turning to the application of paragraph (e), your counsel submits that the following combination of factors satisfies the test:
i.Your impaired mental functioning;
ii.Your upbringing;
iii.Your remorse supported by your guilty plea and support letters;
iv.Your employment and family support; the ill-health of your mother and the need for you to provide her with daily care; and
v.The steps you have undertaken to address your mental health and substance abuse issues.[56]
[56] Defence Outline of Plea Submissions (Evans) dated 16 January 2023, [53].
83It is accepted that a combination of factors, even ones which are ‘mainly or even wholly relatively common’ can enliven paragraph (e).[57] However, it is also important to bear in mind that the test is one which is ‘extraordinarily stringent’.[58]
[57] DPP v Lombardo [2022] VSCA 204 at [72].
[58] Bowen [2022] VSCA 355 at [53].
84For the purposes of the application of paragraph (e), I give no weight to factor (v) in the list of factors identified by your counsel as it is largely or perhaps entirely relevant to your prospects of rehabilitation. This consideration is to be disregarded by virtue of s 5(2HC)(c)(iii). However, the other matters numbered (i)-(iv) bear on both specific deterrence and the need to protect the community from you which are clearly relevant sentencing considerations.[59]
[59] DPP v Lombardo [2022] VSCA 204 at [81]-[82]
85To the list proposed by your counsel I would add your youth, your relatively low moral culpability and your plea of guilty. Your youth is particularly relevant for the reasons I have earlier discussed. Your guilty plea can be taken into account without taking into account its early character.[60]
[60] DPP v Lombardo [2022] VSCA 204 at [82].
86Of the factors relied upon by your counsel, I give considerable weight to the family hardship which I have already found to be exceptional. It is this factor which leads me to conclude that the circumstances are not only ‘substantial and compelling’ (which is conceded by the prosecution)[61] but also ‘exceptional and rare’ (which is not).
[61] Crown Submission on Sentence dated 9 January 2023 at 39(d)
87I note that in the case of DPP v Ballan,[62] Judge Cahill of this Court concluded that the test imposed by s 5(2H)(e) of the Sentencing Act 1991 was met where the court was satisfied that the family hardship test was itself satisfied. While the Court did not equate the two tests, it concluded that the exceptional hardship that would be caused to the offender’s family taken together with the other circumstances of the case in combination were ‘rare and exceptional; and compel the conclusion that the mandatory detention provision should not be applied’.[63] In Ballan, the moral culpability of the offender was assessed as ‘low to mid-range’.[64]
[62] [2020] VCC 883.
[63] [2020] VCC 883 at [76].
[64] [2020] VCC 883 at [59].
88I have applied s 5(2H) in the same way. I have not assumed that because you meet the ‘exceptional family hardship’ test that you automatically avoid a custodial sentence. I have synthesised all of the factors in your case.
89In summary and for the above reasons I conclude that I am not required to impose a custodial sentence on Ms Evans. I note that you served 40 days in custody before you were bailed.
90Your counsel sought a disposition that continues your ‘positive trajectory towards permanent reform’.[65] Under the law, the sentencing disposition that best meets this laudable aim is a CCO. As explained by the Court of Appeal, such an order can operate in a punitive way and a rehabilitative manner simultaneously.[66] That is what is needed in the case of Ms Evans.
[65] Defence Outline of Plea Submissions (Evans) dated 16 January 2023 at [76].
[66] Boulton [2014] VSCA 342
91To this end I had you assessed for a CCO. The assessment outcome report dated 13 February 2023 assesses you as a ‘high risk of re-offending’ but notes your willingness to complete a CCO ‘to be “punished for the crime I’ve done” and for some help to “prevent relapses”’.[67] You are assessed by Corrections Victoria as a suitable candidate for a CCO.
[67] CCO Assessment Report dated 24 January 2023, P 2
92Mr Wright, your circumstances are quite different as your counsel has acknowledged in not seeking to persuade me that any of the exceptions in s 5(2H) apply to you. Your counsel concedes that a term of imprisonment is warranted. This is because there is a greater need to punish you while at the same time promoting your rehabilitation.
93In his written submissions dated 19 January 2023, your counsel submitted that ‘it is open to the Court to impose a term of imprisonment that does not exceed the jurisdictional limit for a combination sentence’.[68] Prior to hearing your counsel’s oral submissions on 8 February 2023, I understood this submission to be that, in a practical sense, the court should impose a sentence of imprisonment of no more than 12 months on top of the time you have already served, together with a CCO.
[68] Outline of Submission in Mitigation (Wright) dated 19 January 2023, [33].
94The prosecution submitted in written submissions dated 23 January 2023 that, because of the seriousness of your offending, you should receive a head sentence and a non-parole period.
95I indicated in open court I was intending to sentence Mr Wright to imprisonment for 15 months on charge 1 and an 18 month CCO on the remaining charges to commence on his release from prison. Because he had served 77 days on remand, the custodial sentence would exceed 12 months once time served was deducted.
96I noted that, despite having contravened a CCO as recently as 2022, Mr Wright was assessed by Corrections Victoria as suitable for a further CCO.[69] He attributed his previous lack of engagement to his use of drugs and alcohol. Mr Wright told the CV assessor that he was interested in engaging on a CCO to help him remain abstinent.[70] I note in this regard that Mr Wright had made what appear to be genuine efforts to pursue drug and alcohol counselling.
[69] CCO Assessment Report dated 24 January 2023.
[70] CCO Assessment Report dated 24 January 2023, P 2.
Section 44(1) of the Sentencing Act 1991 (Vic.)
97After I announced my sentence for both Ms Evans and Mr Wright in open court on 1 March 2023, but before finalising the orders in respect of Mr Wright, both Mr Kelly for Mr Wright and Ms Dane for the Director submitted that such a sentence would not be lawful. They submitted that this is because it would offend against s 44(1) of the Sentencing Act 1991. Both counsel submitted that the limitation imposed by s 44(1) applies to the total effective sentence and not just the sentence imposed for charge 1.
98Section 44(1) relevantly provides:
Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence …, a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.
99At the hearing I questioned if counsels’ construction of s 44 is correct. I pointed out that, in the absence of a conclusion that one of the exceptions in s 5(2H) was made out, the court is expressly prevented from imposing a combination sentence under s 44 in this case.
100I requested further written submissions on the point and adjourned Mr Wright’s case part heard until 17 March 2023. He was remanded in custody.
101I subsequently sought further written submissions about the effect of s 38(2) of the Sentencing Act 1991. That provision states that ‘unless s 44(3) applies, a CCO must commence on a date specified by the court that is not later than 3 months after the making of the order’.
102The court received further written submissions dated 2 March 2023 and 7 March 2023 on behalf of Mr Wright. It also received further submissions from the prosecution dated 15 March 2023.
103Mr Wright submitted that ‘…the 12-month jurisdictional limit for the imposition of a term of imprisonment as well as a CCO applies whether a combination sentence is to be imposed upon a single charge or as the product of a total effective sentence made up of sentences imposed on any number of charges. What is relevant is that the total period of imprisonment to be served under the accused’s global sentence does not exceed 12 months’.[71]
[71] Addendum Defence Submissions dated 3 March 2023, [5].
104This is said to follow from the Court of Appeal’s decision in the case of DPP v Keller.[72] I do not accept this. The issue in Keller was whether there was a valid notice of appeal before the Court. The accused had been sentenced to a total effective sentence of 12 months’ imprisonment to be followed by a 3-year CCO. This had been effected by the imposition of 3 separate sentences. The notice of appeal failed to identify which of the three sentences was the subject of the intended appeal. Under s 287 of the Criminal Procedure Act 2009 (Vic.) for a notice to be valid it must identify the ‘sentence’ or ‘sentences’ which are the subject of the intended appeal. The total effective sentence is not a ‘sentence’ for this purpose.
[72] [2021] VSCA 334 at [68].
105At paragraph [68] of the judgment in Keller, the Court observed that s 44(1) of the Sentencing Act 1991 ‘authorises a court to make a CCO in addition to a sentence of imprisonment where “the sum of all the terms of imprisonment to be served” is one year or less’. Contrary to the submissions of defence, it does not follow from this that the 12 month limit applies in a case such as the present where s 44(1) is expressly excluded from applying.
106The Director accepts that the proposed sentence is not a combination sentence. The Director submits that the effect of s 38(2) of the Sentencing Act 1991 is that any CCO to be imposed in this case must commence within 3 months. The Director concludes that the ‘proposed sentence falls contrary to Part 3A of the Act’.[73]
[73] Further Crown Submissions on Sentence dated 15 March 2023 at [16].
107I conclude that s 44(1) has no application in a case such as the present. I note that, in the case of DPP v Daniher (a pseudonym),[74] his Honour Judge Doyle came to the same conclusion. His Honour considered that Parliament’s use of the singular when referring to ‘the offence’ in both s 5(2H) (‘category 2 offence’) and s 44(1) (‘offence’) support such a construction. As his Honour concluded, ‘s 5(2H) could have explicitly provided that combination sentences were precluded for multi-charge combination sentences where one of the offences on the indictment is a category 2 offence but it does not’.[75]
[74] 26 June 2020, unpublished.
[75] DPP v Daniher at [69].
108However, that does not mean that the sentence I announced in open court was one that the court was permitted by law to make. That is because, once it is concluded, as it must be, that I am not imposing a combination sentence under s 44(1), if I want to sentence Mr Wright to a CCO on charges 2-4, in addition to a term of imprisonment on charge 1, the CCO must commence within 3 months of today’s date.[76] A sentence of imprisonment of 3 months on charge 1 would be inadequate having regard to the maximum penalty and my assessment of the objective gravity of Mr Wright’s offending and his moral culpability for it.
[76] Sentencing Act 1991, s 38(2).
109Having concluded that the sentence I intended to impose was beyond the power of the court, I have rethought the appropriate sentence afresh.[77] As orders were not pronounced, I do not consider that I am exercising the power conferred on the court by s 104B of the Sentencing Act 1991 to reopen the proceeding. If I am wrong about that, and it is necessary to reopen the proceeding to sentence Mr Wright according to law, I make clear that I am exercising the power conferred by s 104B and reopening the proceeding.
[77] To do otherwise may run the risk of engaging in ‘two-stage sentencing’ which is itself unlawful – see Adkins v The King [2023] VSCA 23 at [50].
110Taking into account all of the relevant features of Mr Wright’s case, as well as the constraints imposed by the legislation, I have decided to accede to the prosecution’s original submission and sentence Mr Wright to a term of imprisonment with a non-parole period. The principle of parity operates as a constraint on the length of the term of imprisonment given the non-custodial disposition in the case of Ms Evans.
Parity
111The principle of parity stipulates that offenders who have jointly engaged in the same type of criminal conduct should ordinarily receive similar sentences. While differences in outcomes can, and in fact must, reflect the differing culpability of co-offenders as well as their differing personal circumstances, any difference that engenders a ‘justifiable sense of grievance’ on the part of the more heavily sentenced co-offender that justice has not been done will amount to a sentencing error.[78]
[78] Lowe v The Queen (1984) 154 CLR 606.
112There are several differences between the circumstances of the two offenders. Mr Wright’s moral culpability is greater; he has a more concerning criminal history; he does not have a number of the mitigating circumstances that apply to Ms Evans; and there is no family hardship consideration in his case.
113In the circumstances where Ms Evans will be sentenced to a straight CCO, I consider that Mr Wright would have a justified sense of grievance to be sentenced to a lengthy sentence of imprisonment with a non-parole period. This would offend the principle of parity.
114Mr Wright, having regard to the nature of your offending, your early plea of guilty, your youth and the other matters of mitigation as well as current sentencing practices, I consider that a sentence of 30 months’ imprisonment is appropriate on charge 1.
115As charges 2, 3 and 4 are founded on the same facts as charge 1 and each other, I will make the sentences in respect of those charges wholly concurrent with the sentence imposed on charge 1 and each other.
Orders – Brendan Wright
116On charge 1, (home invasion), you are convicted and sentenced to 30 months’ imprisonment.
117On charge 2 (common assault), you are convicted and sentenced to 12 months’ imprisonment.
118On charge 3 (damaging property), you are convicted and sentenced to 12 months’ imprisonment.
119On charge 4 (theft), you are convicted and sentenced to 12 months’ imprisonment.
120The sentence on charge 1 is the base sentence.
121The sentences in respect of charges 2, 3 and 4 are to be served wholly concurrently with the sentence imposed on charge 1 and each other.
122The minimum term that you are to serve before being eligible for parole is 15 months.
123On the related summary offences, you are sentenced as follows:
i.On the charge of committing indictable offences while on bail, you are convicted and fined $150; and
ii.On the charge of failing to appear in accordance with your undertaking of bail, you are convicted and fined $200.
124Pursuant to s 18 of the Sentencing Act 1991, I declare that the 93 days that you have served in custody be reckoned as time served as a period of imprisonment under the sentence for charge 1.
125Pursuant to s 6AAA of the Sentencing Act 1991, but for your pleas of guilty I would have sentenced you to 3 years and 4 months’ imprisonment with a non-parole period of 22 months.
126Finally, I make the disposal order sought by the prosecution noting that it is unopposed.
Orders – Brooke Evans
127On charge 1, home invasion, and charge 3, damaging property, you are convicted and sentenced to a 2 year community correction order to commence forthwith with the following conditions:
(i)You must report to Box Hill Justice Centre within two working days of today (by COB on Friday 3 March 2023).
(ii)You are to perform 180 hours of unpaid community work;
(iii)You are to engage in treatment and rehabilitation for drug and alcohol use as directed by the Secretary or their delegate;
(iv)You are to engage in mental health treatment as directed by the Secretary or their delegate;
(v)You are to be supervised as directed by the Secretary or their delegate.
(vi)90 hours of treatment is to count as unpaid community work.
128Every CCO has the following general conditions:
· You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
• You must comply with any obligations or requirement prescribed by the regulations.
• You must report to and receive visits from the Secretary or their delegate during the period of the order.
• You must report to the Community Correction Centre specified in the order within two clear working days after the order comes into force, that is, within two clear working days of the date when you are released from prison.
• You must notify the Secretary or their delegate of any change of address or employment within two clear working days after the change.
• You must not leave Victoria except with the permission of the Secretary or their delegate either generally or in relation to a particular case.
• You must comply with any direction given by the Secretary or their delegate that is necessary for the Secretary or their delegate to give to ensure you comply with the order.
129I cannot impose a CCO on you unless you consent. Do you consent Ms Evans?
130I need to explain the consequences of breaching this CCO.
131You must understand, Ms Evans, that if you contravene any of the conditions of the order, which will commence today, then that in itself is an offence punishable by a maximum of three months' imprisonment. Should that occur you will be brought back before this court and it is possible that, depending upon the circumstances, the order will be cancelled and you will be ordered to serve a term of imprisonment instead.
132On the related summary offences, you are sentenced as follows:
i.On the charge of committing indictable offences while on bail, you are convicted and fined $150; and
ii.On the charge of failing to appear in accordance with your undertaking of bail you are convicted and fined $200.
133Pursuant to s 6AAA of the Sentencing Act 1991, but for your pleas of guilty I would have sentenced you to 6 months’ imprisonment and a CCO of 12 months’ duration.
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