Director Of Public Prosecutions (VIC) v Nicholas Dean And Adrian Mclean And Amanda David
[2017] VCC 1989
•21 December 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
CR-17-00923
CR-17-01186
CR-17-01187
THE DIRECTOR OF PUBLIC PROSECUTIONS (Vic) Prosecution
v
NICHOLAS DEAN Defendants
and
ADRIAN MCLEAN
and
AMANDA DAVID
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JUDGE: HIS HONOUR JUDGE MURPHY
DATE OF HEARING: 2, 3 November 2017
DATE OF SENTENCE: 21 December 2017
CASE MAY BE CITED AS: DPP v Dean & Ors
MEDIUM NEUTRAL CITATION: [2017] VCC 1989
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Aggravated home invasion – Other related offences – First prosecution of aggravated home invasion – Home invasion in company – Joint criminal enterprise – Pre-meditated – Use of imitation firearm and baseball bat – Intent to steal – Escalation in individual offending – Minimum non-parole period required by legislation – Whether special reasons exist – Relevance of sentences for confrontational aggravated burglary – Hogarth v The Queen (2012) 37 VR 658; [2012] VSCA 302, Hi v The Queen [2017] VSCA 315, Director of Public Prosecutions v Bowden [2016] VSCA 283, Perri v The Queen [2016] VSCA 89, Director of Public Prosecutions v Meyers [2014] VSCA 314, considered – Crimes Act 1958 (Vic) s. 77B, Sentencing Act 1991 (Vic) s. 10AC
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APPEARANCES: Counsel Solicitors
For the Director of Mr M Gibson SC Mr J Cain, Solicitor for Public
Public Prosecutions Prosecutions
For Nicholas Dean Mr M Cunningham Defteros Lawyers
For Adrian McLean Mr C Pearson Greg Thomas, Barrister and
Solicitor
For Amanda David Ms D Lamovie Victoria Legal Aid
HIS HONOUR:
Nicholas Dean, Amanda David and Adrian McLean, you have each pleaded guilty to a single charge of aggravated home invasion. The maximum penalty is 25 years' imprisonment.
Mr Dean, you have also pleaded guilty to two charges of armed robbery – maximum penalty 25 years' imprisonment – and one charge of possession of a drug of dependence, namely methylamphetamine.
Ms David, you have also pleaded guilty to one charge of possession of a drug of dependence, namely methylamphetamine, one charge of theft – maximum penalty ten years' imprisonment – and one uplifted summary charge of assaulting/resisting an emergency worker whilst on duty – maximum penalty six months' imprisonment or 60 penalty units.
Mr McLean, you have also pleaded guilty to one charge of possession of a drug of dependence, namely methylamphetamine, and one uplifted summary charge of committing an indictable offence on bail – maximum penalty three months' imprisonment.
The maximum penalty for the offence of possession of a drug of dependence varies depending on the purpose for which it was in your possession. If the Court is satisfied on the balance of probabilities that the offence was not committed for the purposes of trafficking, the maximum penalty is one year's imprisonment or 30 penalty units, or both. Where the court is not satisfied then the maximum penalty is five years' imprisonment or 400 penalty units, or both.
Circumstances of offending
The circumstances of the offending were set out in the Summary of Prosecution Opening which was read in open court on the plea by the Crown prosecutor, Mr Gibson SC. I incorporate this by reference.
A brief summary of the offending follows. In the evening on 21 December 2016, the victims, to whom I shall refer to as mother, father and son, were home at their property on Plantation Road, Frankston North. At about 9.00pm, the mother left to go to work as an aged-care attendant. This left the father and 15-year-old son at home.
At about 9.15pm you, Ms David, knocked on the front door and asked if anyone had seen your puppy. The son answered the door and stated that his father was asleep inside. The Crown use this as evidence to put that this was in fact a premeditated plan to see if anyone was home at the property.
At approximately 2.40am the following morning, 22 December, each of you were seen arriving at the church car park less than 200 metres from the Plantation Road property. At this point Mr Dean removed a bandana from a back pack and Mr McLean was carrying a camouflage back pack containing a baseball bat.
10.The three of you walked from the church car park to the Plantation Road property where you climbed over a side fence and you, Ms David, opened or forced a side window at the back of the property. You then climbed inside the window and unlocked a sliding door to allow Mr Dean and Mr McLean to enter.
11.The three of you were under the mistaken belief that the father was in possession of a large amount of cash and gold jewellery.
12.At the time of entry into the property, Mr Dean, you were in possession of a black single-barrelled imitation handgun. Mr McLean, you were aware that Mr Dean was in possession of this handgun; however, the Crown cannot prove that you, Ms David, were aware that Mr Dean was carrying this handgun.
13.Also at the time of entry you, Mr McLean, were carrying a baseball bat. Ms David, you were aware of this.
14.The offence of aggravated home invasion (Charge 1) was complete upon entry to the premises where the intent of each of you was to steal in company whilst you were in possession of an imitation firearm or offensive weapon whilst persons were present. This was put by the Crown as a joint criminal enterprise in that you were acting in concert with each other.
15.At the time of entry, the father was asleep in the front bedroom of the property and was awoken by the light being switched on. He awoke to see you, Mr Dean, pointing the imitation firearm towards him. Mr Dean, you said to the father, "Don't make any noise or I'll kill you", at which point he replied saying, "Take anything you want". At this point, you, Mr Dean, made demands for access to gold and cash. Whilst you were pointing the handgun towards the father you searched through the bedroom of the father and stole two Samsung tablets and three laptops.
16.After leaving the bedroom, Mr Dean, you entered the lounge room, again whilst armed, and stole one Nokia phone and an Apple iPhone, both of which belonged to the father. Your actions of stealing property belonging to the father whilst inside the property constitute Charge 2 on the indictment, armed robbery.
17.You, Mr Dean, then walked through the house and stole a LG mobile phone belonging to the son whilst armed. This constitutes Charge 3, armed robbery.
18.At some stage during the incident, you, Mr Dean, entered the bedroom of the father while in possession of the baseball bat and searched through the bedroom. It appears that you did not steal anything, however.
19.Ms David, you too entered the bedroom at some point during the incident but again did not steal anything. It does not appear that you were armed during the home invasion.
20.Prior to leaving the property, Ms David, you followed both males into the lounge room who, whilst armed, searched through the mother's handbag and father's backpack. You, Mr Dean, stole an ANZ bankcard belonging to the mother from the backpack.
21.A short time later, the three of you exited the property where you, Mr Dean and Ms David, placed the stolen items into a wheelie bin and walked together with the bin back to the church car park where the bin was hidden amongst bushes and the two of you discarded your dark-coloured hooded tops. The actions of you, Ms David, in moving the stolen property from the property to the church car park, where it was later collected, constitutes Charge 6, theft.
22.The property stolen was valued at approximately $1,500 and was collected later the following day by one of you; the Crown cannot say which.
23.On 30 November 2016, police executed search warrants at the premises of you, Mr McLean, and the shared premises of you, Mr Dean and Ms David. At Mr McLean's property, police found a BMX bike that was used as a mode of transport from the church car park on the morning of the incident, together with other items that were emblazoned with a graffiti tag that was identical to the one that was on the baseball bat which was left at the property you invaded.
24.Police located at the property of Mr Dean and Ms David the items that were stolen during the home invasion, including the laptops, mobile phones and tablets, some of which were hidden in the roof cavity.
25.1.9 grams of methylamphetamine was found in the property occupied by you, Mr Dean and Ms David. This constitutes Charge 4 against Mr Dean and Charge 5 against Ms David, possession of drug of dependence.
26.Each of you were arrested, interviewed and remanded in custody on 30 December 2016.
27.Upon being searched at the police station you, Mr McLean, were found in possession of two snap-lock bags containing methylamphetamine. This constitutes Charge 7, possession of a drug of dependence.
28.At the time of offending you, Mr McLean, were on bail for other offending. This constitutes the uplifted summary charge against you, Mr McLean.
29.As you were sitting in the interview room at the police station, Ms David, you swung a chair at Constable Stone hitting him in the forearm. He sustained no injury. This constitutes the summary charge of assaulting/resisting an emergency worker while on duty.
30.Each of you made admissions to a covert police operative while in the holding cells at the police station. As such, police were able to locate a second imitation firearm that was used in the robbery, in a drain nearby the church.
31.You, Mr Dean and Ms David, denied involvement in records of interview undertaken by the police. After originally denying involvement in the record of interview you, Mr McLean, fully admitted your involvement.
32.As I have indicated, when police raided the property of you, Mr Dean and Ms David, most of the stolen property was recovered.
Victim impact statements
33.Victim impact statements have been filed by the residents of the house. The male head of the household in that states that prior to the event he felt safe in the house and now he is worried that it might happen again and worried about his wife's welfare as well as that of his son. He is now hyper-vigilant and has had to apply for funding for security for his home. He now feels different from having the three of you invading his home and he worries about his family more feels very protective.
34.He and his spouse want to move out of the area. Unfortunately they cannot do so and he is finding it hard to trust people in his local community.
35.His wife, who was not present at the time, has also filed a statement. She is now scared to remain at home by herself. She previously worked night shift and she has now stopped working night shift so that she or her husband can be home with their son. She has lost money as a result of that. She can't understand why the family was the subject of this event and she has changed her behaviour and she is scared of people seeing her coming and going. She is careful about her valuables and is concerned about her son's welfare and his exams. She believes that his concentration has been affected. She used to feel safe in her home and she is now scared, at night especially.
36.The teenage complainant has filed a statement. He is now more cautious about noise around the house, not just at night. He double checks the locks every night before going to bed. He has found it hard to concentrate on his studies and is frustrated that the incident took place. It took his focus off his studies and he worries about his mother.
37.The victim impact statements indicate that this offending has had a significant impact on the occupants of the house, as would be expected given the circumstances of your offending. The impact on the complainants as set out in the victim impact statements must be taken into account in assessing the seriousness of your offending and in sentence.
The offence in question
38.The offence of aggravated home invasion was inserted into the Crimes Act 1958 in 2016 as a result of an increase of aggravated burglaries in people's homes by gangs. The offence was enacted to capture the most serious instances of home invasions. During the Second Reading Speech, the Minister said:
"This [offence] is intended to deter those who think it is acceptable to form a gang, arm themselves and break into a home – not caring that there are people at home and that those people will be terrified and traumatised".
39.The seriousness of this offence is further reflected by s. 10AC of the Sentencing Act, which states that a court must impose a term of imprisonment and fix a non-parole period of not less than three years, unless a special reason exists. I will return to that provision later in my reasons.
40.The new offence of aggravated home invasion is an offence clearly addressed to the more serious end of the spectrum of aggravated burglary, because the ingredients of the offence include that a person actually be present in the home, that there be three or more offenders and that the offenders be armed. Within the spectrum of the offence, the intent at the time of entry can be either theft, or assault or property damage. Thus Parliament sought to address both confrontational aggravated burglary and aggravated burglary with the intention to rob occupiers. I am dealing with this latter offence.
Seriousness of the offending
41.On the plea there was acceptance from each of you that this was serious offending. To invade a home in the early hours of the morning, in company, where you were dressed in dark clothing and with two of you wearing hoods and where two of you were armed, one with a realistic-looking firearm and you, Mr McLean, with a baseball bat, must have been frightening for the occupants, one of whom was a 15-year-old youth.
42.The mode of entry is also a consideration. You, Ms David, had ascertained the previous evening that at least the youth was present in the home. You then were able to obtain entry into the house through a window and proceeded to open the back door to allow your co-offenders access. Thus, the occupants of the house would have been taken by surprise to suddenly find three intruders in the house in the early hours of the morning.
43.In your submissions, Mr McLean, you put that the offending was at best in the mid-range of seriousness in that it was only of a relatively short duration, somewhat amateurish and there was no actual violence.
44.In terms of classifying the seriousness of the offending, the learned Crown prosecutor put, for sentencing purposes, that the offending as at the higher end of the mid-range of offending for aggravated burglary. In submissions he referred to the factors set out in Meyers,[1] which must be considered in assessing the seriousness of this type of offence. I agree that this offending when assessed in the light of the factors set out in Meyers should be seen as being in the higher end of the mid-range.
[1] Director of Public Prosecutions v Meyers [2014] VSCA 314, [48] (‘Meyers’).
45.As indicated, Parliament has carved out from the field of aggravated burglaries those that involve a gang of three (or more) committing the offending and using weapons to do so.
46.It is important that I consider what were your respective roles in what was a joint criminal enterprise. In submissions on behalf of you, Mr Dean, it was suggested that the idea of the offence was that of Mr McLean. In Mr McLean's record of interview he maintained that the offence had been discussed between you, Mr Dean and Ms David, for a few days prior to the event and that he, Mr McLean, only went along to prevent the use of violence. Your counsel submitted, Ms David, that you joined the plan at the last minute. This is somewhat inconsistent with your earlier recognisance of the property.
47.In the absence of contested evidence as to the genesis of this crime, I am unable to reach any conclusions as to whose idea the crime was. Rather, it is appropriate to sentence you all on the basis that there were some premeditation for the offence.
48.Your counsel indicated, Mr Dean, that you were in financial difficulty. Each of you were using drugs. The motivation for the crime was clearly financial.
49.In relation to all of you, you changed your clothing and two of you were wearing hoodies and one a baseball cap. You, Mr Dean, armed yourself with an imitation firearm and you, Mr McLean, took the baseball bat. In terms of the culpability for the offending the fact that it was only you, Mr Dean, who presented the firearm to the adult male does not reduce the culpability of your co-offenders when you, Mr McLean, knew that Mr Dean had a firearm and you, Ms David, had both attended the premises earlier in the night and went into the premises to allow the other two to access them.
50.In submissions on your behalf, Ms David, your counsel put that you were only little referred to in the statements by the occupiers and that this somehow reduced your culpability. I do not accept this. The three of you were present in the house and it is this intrusion in company that adds to the gravity of the offending of home invasion. Similarly, the fact that the weapon was only presented by Mr Dean does not avoid joint responsibility being sheeted home to you Ms David and Mr McLean.
Prior criminal history
51.Mr Dean, you are now aged 35 and have admitted a criminal record containing a number of prior convictions. Your criminal record dates back to drug-related, firearms and dishonesty offences in May 2003, when you received a Community Corrections Order, without conviction. You were aged just 21 at the time. Thereafter, in May 2009 in Cairns, you were dealt with for weapons and drug offences and fined $1,500. On 16 November 2014, you were fined $300 for contravening a family violence order. Your most relevant appearance was on 21 June 2016 at Moorabbin Magistrates' Court where, for possession of methylamphetamine, failure to answer bail and possessing controlled weapons without excuse, family violence, weapons, contravening bail and assault related offences, you were sentenced to an aggregate period of six months' imprisonment, of which some 92 days were declared as time served. This means that you had been out of prison for approximately three months when you committed the offences for which you fall to be sentenced today. This was, however, the first time you had been sentenced to a term of imprisonment.
52.Overall, given your age, these offences are a major escalation in your offending. As submitted on the plea, you have no prior convictions for burglary or robbery-related offending and significant periods where you have not been before courts.
53.Mr Dean, you have a subsequent conviction. On 24 February 2017, you were convicted on charges of possessing cartridge ammunition, possessing a dangerous article, possessing house breaking implements, committing an indictable offence on bail and possessing various drugs of dependence. You were sentenced to three months' imprisonment for this offending. You thus have less pre-sentence detention than Mr McLean and Ms David.
54.Ms David, you have also admitted a criminal record containing a number of prior convictions for weapons offences, failing to answer bail, burglary, contravening Community Corrections Orders, theft and trafficking and possessing drugs of dependence. Between 2000 and 2002, you were dealt with for a number of dishonesty offences, one count of burglary, trafficking and possessing heroin. You were sentenced to a Community Corrections Order that you subsequently breached. On 11 September 2000, on a count of burglary you were sentenced to a two-month term of imprisonment wholly suspended. You were just 20 at that stage. You were also fined for shop theft.
55.There is then a 12-year gap in your offending. On 19 February 2014, you were dealt with at the Werribee Magistrates’ Court on offences of assault by kicking, unlawful assault and failing to answer bail and you were placed on a Community Corrections Order for nine months and ordered to undergo mental health assessment and offender behaviour programs. You were found to have contravened that order. This offending, as submitted by your counsel, is related to disputes with your then partner.
56.Most significantly, on 5 August 2015 you were sentenced in the Broadmeadows Magistrates' Court to an aggregate sentence of 109 days' imprisonment for assault-related offences, contravening family violence orders, using and discharging prohibited weapons and failing to answer bail. This is the longest sentence you have served in custody, apart from the current time you have spent on remand for this offending.
57.The prosecutor also referred to a subsequent appearance where you were placed on a bond for assaulting staff at a psychiatric facility. This offending occurred before you committed these offences.
58.As with your co-offender, Mr Dean, the offending that I am dealing with is a very significant escalation in your criminal activity.
59.Mr McLean, you too have admitted a criminal record which includes offences of theft, possessing methylamphetamine, failure to answer bail, handling stolen goods and a number of driving offences. You have served two periods of imprisonment, a three-month term for a theft of a motor vehicle, driving in a manner dangerous, possessing various drugs of dependence and failure to answer bail. You were sentenced for these offences in March 2002 when you were aged 21, which shows that, apart from a charge of theft, failure to answer and breach a suspended sentence in 2013, you have stayed out of the Victorian criminal justice system for some 15 years.
60.Your interstate record shows, however, drug-related offending in 2005, 2006, 2010 and 2012. The most serious of your prior offending was an appearances for four counts of assault occasioning actual bodily harm in Sydney in 2007. You were sentenced to 12 months' imprisonment suspended on entering a bond for that offending. In addition, on the same date, 6 November 2007, you were sentenced to two months' imprisonment for numerous larceny offences. On the plea, your counsel indicated that at that stage you had spent three months on remand and this would explain your release on a good behaviour bond on the same date.
61.Your criminal record, while it involves a number of appearances and convictions, is of offending much less serious than this. From this it can be concluded that this particular offending is somewhat out of character given your antecedents.
62.The Crown prosecutor noted that you were on bail for a number of matters when this offence occurred and this is an aggravating feature.
Possession of a Drug of Dependence
63.Before turning to matters in mitigation I should refer to the charge of possession of a drug of dependence for which each of you have pleaded guilty.
64.As I have indicated, the maximum penalty is lower where the possession was not for a purpose of trafficking.
65.On the plea the learned Crown prosecutor noted that there was an admission by each of you, Mr Dean and Ms David, that you were prepared to sell drugs to an undercover operative when you were in the police cells. From this he submitted that the higher penalty should apply. Your counsel, Mr McLean, put that, having regard to your antecedents and the small amount of drugs involved, the court should find on the balance of probabilities that the drugs were in your possession for personal use. A similar submission was made on your behalf, Ms David.
66.Having regard to the small amount of drugs found in each of your possessions, and the fact that you were drug users and have drug antecedents, notwithstanding the statements made by you, Mr Dean and Ms David, to the undercover operatives, on the balance of probabilities I am satisfied that the drugs found in your possession by each of you when arrested were for your personal use, and thus, I sentence you on the lower maximum penalty.
Matters in mitigation
67.You have each pleaded guilty to this offending.
68.The matter is resolved in relation to each of you after committal mentions. I give each of you credit for an early plea of guilty. The plea is significant in that it did spare the complainants of both a committal and a trial, which would have been significantly traumatic for them, and you have each taken responsibility for your conduct and you are entitled to credit for that.
Personal circumstances – Mr Dean
69.I turn now to your personal circumstances, Mr Dean. Your personal circumstances were set out on the plea by your counsel in his written outline and I incorporate them by reference.
70.You are now aged 35.
71.You completed VCE at Beaumaris High School. You have a four-year-old son from a long-term relationship. You have maintained fortnightly contact with your son whilst on remand. Your parents have relocated from Cairns to Melbourne to provide you with support. Your mother was in court on the plea to support you. She is willing, after your eventual release, to allow you to move back with her and she will provide you with the necessary support while you attempt to get back on your feet.
72.There was little detail of your employment history; however, your counsel tendered three character references testifying to your good work record and ethic. One such reference was from your former superior, Mr Orr, who stated that you had been an employee of the Melbourne Mower Centre from December 2009 until December 2015, a period spanning six years, as a retail sales assistant. Mr Orr stated that you were an honest and reliable employee and he found this offending to be out of character for you. He described you as an enthusiastic and diligent employee and that you achieved excellent sales results and left as a senior sales consultant. It was put on the plea that you have maintained contact with Mr Orr and he would be willing to consider your return to his employment upon your release from prison.
73.Another reference was tendered from Ms Stenhouse, your auntie. She indicates that in your adult life you have been able to hold down for significant period’s three different jobs that you did well at.
74.I must consider your prospects of rehabilitation. Your employment record indicates that there have been significant periods where you have kept out of trouble. Although you have a number of prior convictions, as submitted, you have no prior convictions for burglary or robbery. Further, you have not served a significant term of imprisonment. On the plea it was indicated that there was a possibility of returning to your former employer in motor mower sales. You have the support of your mother. All those matters would indicate that, notwithstanding the seriousness of this offending here, you have reasonable prospects of rehabilitation, particularly if you are able to cease the use of illegal drugs.
Personal circumstances – Ms David
75.Ms David, your personal circumstances were also set out on the plea by your counsel and also in the psychiatric report of Associate Professor Carroll that was tendered and in the submission by your counsel and I incorporate them by reference.
76.You are currently aged 35 and were born in Dandenong and grew up in the Clayton and Hampton Park areas. You have an older sister, a younger sister and a younger brother. Your parents divorced when you were aged 12 and you moved between your mother and father's house as a result. There are also periods when you were in care. At age 16 you became addicted to heroin and dropped out of school as a result. You have found it difficult to maintain steady employment and have worked mostly in casual hospitality work since leaving school, although you have undertaken a couple of vocational courses.
77.You had your first child when you were aged 19. You now have four children whom you are separated from, the youngest three of whom were removed from your care in 2014. You describe the father of your youngest three children as mentally and physically abusive and, as a result, you have limited contact with him. There have been into intervention order proceedings between you and bitter disputes over the custody of the children. Your father gave evidence that the relationship was abusive. Your current partner is Mr Dean and you had been together for a short time, from about September 2016, before this offending.
78.Your psychiatric history was set out by Assoc. Prof Carroll both in his report and oral evidence. He opines that, as a result of decade-long substance abuse, you developed a paranoid schizophrenic illness sometime in your mid-20’s which was untreated until you were admitted to the Royal Adelaide Hospital in 2014.
79.A report prepared by Jonathon Symon of the Royal Adelaide Hospital also states that you presented there after having months of paranoid beliefs, hallucinations, and thoughts of self-harm and depressive episodes. You reported two suicide attempts to the treating doctor in Adelaide.
80.You also spent almost one month as an in-patient at the Thomas Embling Hospital in 2015. You were referred to the Hospital pursuant to a Secure Treatment Order. Upon your admission, you were unable to explain why it was that you had been ordered to reside there and did not agree that you had previously been diagnosed with schizophrenia. The discharge summary notes that you had no insight into your mental state at this time.
81.Since this time spent in the Royal Adelaide Hospital and Thomas Embling, Assoc. Prof Carroll opines that your mental state had not stabilised. You have spent small periods of this time in custody and relapsed into drug use after developing a methylamphetamine addition while homeless. Pursuant to a Community Treatment Order in 2016, you commenced on injectable antipsychotic medication and had several in-patient admissions.
82.Assoc. Prof Carroll opined that you have suffered from delusions, hallucinations and symptoms consistent with schizophrenia for over a decade. He states that when these symptoms are at their worst they are sufficiently severe to warrant involuntary admission for several weeks, as you have had. However, Assoc. Prof Carroll opined that he could find no evidence that your mental illness had any of the described effects at the time of this offending.
83.He further opined that your mental illness would not make you more vulnerable to pressure or suggestion by others and that, apart from stating generally that schizophrenia predisposes someone to substance abuse, Assoc. Prof Carroll could not find any evidence that your mental illness directly contributed to your offending behaviour.
84.In oral evidence, Assoc. Prof Carroll opined that in some cases where a person presents with acute psychotic symptoms there will be a very direct causal link between those symptoms and the alleged offending; however, he could not find any evidence of this case.
85.Assoc. Prof Carroll was an impressive witness who, while not being prepared to concede that there was a causal connection between the symptomatology of your illness and your offending, was prepared to say that there was a secondary connection due to the decline in functioning, which was part and parcel of your mental illness, and this decline led to psychosocial deterioration. He also noted that impulse control may be part of it. Often people with inadequately treated schizophrenia will have a tendency to be disorganised and be the subject of poor planning and poor judgement.
86.Significantly, Assoc. Prof Carroll noted that you are now properly medicated and your condition is stable such that provided you remain compliant he regards your medical prognosis as good.
87.On the plea your father provided a letter and gave evidence as to your background and his involvement in your life. On his account through no fault of your own you have had a difficult upbringing and, as a result of his own difficulties, he was unable to provide you with the support you needed as you progressed through life. He corroborated the difficulties you have had with your mental health condition and the abusive relationship in which you bore three children, that in circumstances where you are having difficulties with your psychiatric condition, you lost custody of them. He currently has custody of your eldest son. He has been attempting to visit you in prison, but for unexplained administrative reasons has been unable to do so.
Overall assessment
88.There is much in the evidence of Assoc. Prof Carroll and in the family history set out by your father that excites sympathy. You have had a difficult life, with family breakdown, teenage pregnancy, an abusive relationship, loss of access to your children, use of drugs and, for the last decade or so, being destabilised as a result of underdiagnosed schizophrenia. This has led in the period prior to the offending to involuntary admissions to psychiatric facilities.
89.It is only now after a period of stability on remand that you have accepted your condition and are compliant with your medication.
Does s. 10A of the Sentencing Act apply?
90.Your counsel sought to submit that your condition was such that this amounted to a ‘special reason’ under s. 10A of the Sentencing Act such that the minimum mandatory non-parole period of three years for this offending, aggravated home invasion, should not apply.
91.I accept the learned Crown prosecutor's submission that you carry the onus on this issue. On the basis of the evidence of Assoc. Prof Carroll, I do not accept that there was a relevant causal link between your offending such that it substantially reduced your moral culpability. It follows that I accept the prosecution submission that s. 10A(2)(c)(i) does not apply.
92.Further s. 10(A)(2)(c)(ii) is also not made out on the basis of the evidence of Assoc. Prof Carroll. On the contrary, your imprisonment on remand has assisted in the management of your condition such that it could not be said that imprisonment is significantly more burdensome than the ordinary burden of imprisonment.
93.Finally, your counsel sought to rely on a combination of factors that met the requirement that there are substantial and compelling circumstances that justify a non-parole period below that specified by the Parliament.
94.This is a heavy burden and, in approaching it, effect must be given to Parliamentary intention.
95.Whilst you have put forward some weighty matters and, as I have indicated, your circumstances are such as to excite considerable sympathy, I am not satisfied that they meet the high threshold imposed by Parliament under s. 10A(2)(e) of the Act.
96.For all these reasons you will not be sentenced to a minimum term of less than three years' imprisonment.
Personal circumstances – Mr McLean
97.I turn to your personal circumstances, Mr McLean. Your personal circumstances were set out by your counsel on the plea and are set out in the reports of Ms Cidoni, consultant psychologist, and the report of Dr Borg, clinical neuropsychologist. Your life history is also set out in a long letter addressed to the court, which I have considered.
98.You are now aged 36. You were born in the Frankston area and your parents separated when you were young and you lived with your father after that. You have a younger brother who went with your mother, and since you were aged about seven or eight you have had little to do with her. You were raised by your father until you are aged around seven and then you moved in with your grandmother. You were also transferred to your aunt between the ages of 11 and 14. At that age you then commenced living with your girlfriend. It appears that you completed Year 9 at school. You also move back with your father for a period. He was a heavy drinker and violent. You moved back in with your aunt at age 17 until you were aged 19.
99.Your criminal record indicates that in March 2002, when you were dealt with for theft and motor vehicle related offences, you were sentenced to a term of imprisonment of nine months with three months to serve with the balance suspended. Your Victorian criminal records is then blank for a period of 11 years.
Around that time you moved with your girlfriend to Adelaide and then commenced what was described by your counsel as an odyssey around Australia. That took you to South Australia, Western Australia, the Northern Territory, Queensland and New South Wales.
Your then partner gave birth to your first child in Perth in 2003 and another child who died in infancy in the Northern Territory. Not surprisingly this had an impact on you. You and your partner then moved to Queensland, where you held down a good job, and she had three children born to you in 2006, 2007 and 2008. You were living in Ipswich close to her family in a productive position until you lost everything in the flooding.
You then moved to Sydney to attempt to obtain work. In late 2007 you were involved in an altercation in a boarding house that you were living in. According to the letter you authored, you spent three months in custody and then the records indicate, as I have indicated, that you were placed on a 12-months suspended sentence for a series of assault charges at that stage.
In 2011 another daughter was born and you spent two years living in Sydney with your girlfriend as a stay-at-home father. At that stage the two of you had five children. You were involved in an incident in December 2013 when you were assaulted with significant facial fractures giving rise to an issue as to whether or not you had an acquired brain injury. At that point, your girlfriend moved to Melbourne; you subsequently followed her but you had lapsed into using drugs. She indicated that she wished to separate from you.
In evidence was an admission report from Peninsula health dated 18 April 2015 indicating that you were admitted to Frankston Hospital suffering from concussion and possible seizures. You had been on medication but were non-compliant.
The auntie with whom you had lived when you were younger was then diagnosed with cancer and you were looking after her. This had an impact on you. She passed away earlier this year.
The report from Dr Borg indicates that you have been a long-term user of various drugs including alcohol, cannabis and amphetamine-type stimulants.
You met your co-offenders about four weeks before this offending and relapsed into using drugs and this led to this offending.
Medical reports
On the plea your counsel tended a report from Ms Cidoni. She indicates that after examining you, you were suffering from the effects of poor mental health, a legacy of drug dependency issues and impaired cerebral functioning and had an extremely low IQ. She opined that you had impaired cognitive function and your mental health symptoms would impact upon you in managing and regulating your emotions and could cloud your judgment. She noted that you were very remorseful about the offending.
There was a stark contrast in the reports between Ms Cidoni and Dr Borg in that Dr Borg finds that you have a reasonably good IQ and only mildly reduced memory functioning. She assesses that you may have had a mild closed-head injury and that there may be impulse control and visual reasoning difficulties as a consequence of that, and past substance abuse. She notes that you require routine and structure to adhere to court orders and your potential for alcohol and drug relapse once release is considered high.
Overall, her opinion appears to be that with adequate support upon release you may respond well to a structured and goal focused management plan and you have the cognitive capacity to do so.
Verdins considerations
Your counsel have submitted that the contents of the psychological reports support a conclusion that imprisonment will be more onerous than others without your cognitive deficiencies and closed-brain injury. In the light of the report of Dr Borg where she identifies the closed-brain injury is being only mild, I do not accept that your psychological condition calls for any reduction in moral culpability under the principles of Verdins.[2]
[2] R v Verdins (2007) 16 VR 269.
In considering the overall impact of imprisonment, however, I do take into account her report and also take into account that your separation from your children will make it more burdensome than those without children. The existence of these children will also favourably impact upon your prospects of rehabilitation upon release
Overall assessment
Overall, your life history, Mr McLean, as set out in the two reports and in your own letter is one that evokes considerable sympathy. You have a background of early parental separation and abandonment. Notwithstanding this, just looking at your criminal record from age 21, you were sentenced to a term of nine months' imprisonment with three months to serve and the balance suspended. You were then sentenced to terms of two months' imprisonment in November 2007 in Sydney for larceny and then to 12 months imprisonment suspended for 12 months on 14 December 2007. You were not resentenced on the breach of the suspended sentence when you were before the Frankston Magistrates' Court on 5 March 2013 due to exceptional circumstances, found to be disparity between your breaching offence and no offending for a period of ten years.
This is where in a sense the system caught up with you after your departure from Victoria for a period of a decade. Over that period from 2002 as set out in your letter in your odyssey around Australia you had been involved as a parent with a number of young children born to your then girlfriend. This alone indicates that you are capable, notwithstanding your relatively deprived upbringing, of acting responsibly.
To some extent this is reflected in the fact that your most recent offences since you returned to Victoria have been relatively minor dishonesty and drug-related offences for which you have received monetary penalties. Since being on remand you have completed numerous courses indicating a desire to enhance your prospects upon release.
Comparable cases
I turn now to comparable cases in sentencing the three of you. As I have indicated, the learned Crown prosecutor submitted that this offending here should be regarded as above the mid-range of offending for the offence of aggravated burglary. I agree with this.
The recent High Court decision in Dalgliesh[3] indicates that sentencing judges must take into account all the matters set out in s. 5 of the Sentencing Act. This includes the maximum penalty and current sentencing practices.
[3] Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063 (‘Dalgliesh’).
Current sentencing practices are only one consideration. Given that the offence of aggravated home invasion has only recently gone on to the statute books, as such there are no current sentencing practices available. I accept, however, that sentences for more serious examples of aggravated burglary are relevant in considering an appropriate sentence in this case. Sentences in other cases can be seen as a yardstick against which to consider an appropriate sentence.
The learned Crown prosecutor referred to the sentencing snapshot for the period ending 30 June 2015. This indicates that over the period of four years before that, the median sentence of imprisonment was two years and six months and sentences did range up to seven years.
In the light of more recent decisions of the Court of Appeal and the creation of the offence of aggravated home invasion, I do not regard the sentencing snapshot as being of any assistance in this matter.
The learned Crown prosecutor referred in written submissions to the Court of Appeal decision in Hogarth[4] where the court stated that sentences for confrontational aggravated burglary or home invasion must increase. The legislative intervention only emphasises this issue.
[4] Hogarth v The Queen (2012) 37 VR 658 (‘Hogarth’).
I was also referred to a number of other cases during the course of the plea. The learned Crown prosecutor referred me to the case of Hi,[5] which was considered by the Court of Appeal after the High Court decision in Dalgliesh. The Court of Appeal dismissed the appeal against a sentence of seven years' imprisonment on a charge of aggravated burglary. This aggravated burglary was well planned and the offenders used disguise. The sentence was held to be well within range.
[5] Hi v The Queen [2017] VSCA 315.
I was also referred to the earlier case of Bowden[6] where, on a Director's appeal, on a charge of aggravated burglary the sentence was increased from three years to four years. In that case the respondent and a co-offender entered a property where the respondent was carrying a large hunting knife. But for the constraints of current sentencing practices the sentence would have been considerably higher, according to the court.
[6] Director of Public Prosecutions v Bowden [2016] VSCA 283.
Counsel for the Crown and Ms David referred to the case of Meyers,[7] where the Court of Appeal increased a sentence to four years on a charge of armed robbery and aggravated burglary where the offender entered as a trespasser into his former partner's house armed with a sawn-off shotgun. The Court of Appeal increased this sentence in the light of its earlier decision in Hogarth. Counsel for Ms David submitted that this was particularly relevant to the case of Ms David, as she did not enter the property with a weapon but merely gained entry to the property and that the conduct of her two co-offenders was more serious whilst inside the property. I do not accept that distinction, as I have found that this was a joint criminal enterprise where each of the participants is responsible for the actions of the other and must accept that culpability.
[7] Director of Public Prosecutions v Meyers [2014] VSCA 314.
Counsel for you, Mr McLean, referred to the case of Perri,[8] where the Court of Appeal reduced a sentence of six years and nine months to five years and six months, where the appellant and his two co-offenders mistakenly believed there were large amounts of cash at the victim's property. The offenders pretended to be courier drivers and obtained a rental van for the use in the burglary and carried with them a pistol with a silencer. Counsel for Mr McLean submitted that this was a significantly more serious offence than this one that you fall to be sentenced for. I accept that it was more serious; however, there were issues of parity in that case and the sentence of a co-offender was described as very lenient.
[8] Perri v The Queen [2016] VSCA 89.
There have been other recent cases in the Court of Appeal regarding aggravated burglary, including the case of Trajanovski and Kelmendi,[9] on 10 April 2017, where the court dismissed an appeal by both offenders against a sentence of five years' imprisonment on the charge of aggravated burglary. That involved an offence in company where one offender was armed with a concealed firearm and the other with a baseball bat. One offender was on bail. Both offenders had significant prior convictions and both were slightly older than you all.
[9] Trajanovski and Kelmendi v The Queen [2017] VSCA 81.
Counsel for Ms David referred to the case of Robinson,[10] where the Court of Appeal imposed sentences of five years' imprisonment for aggravated burglary in company where there was the use of a shotgun.
[10] Robinson and Robinson v The Queen [2017] VSCA 304.
Finally, in the case of Benson,[11] the Court of Appeal dismissed a Director's appeal against a total effective sentence of four years' imprisonment on charges of aggravated burglary and recklessly cause injury and held that the sentence, while arguably lenient, was not wholly outside the range.
[11] Director of Public Prosecutions v Benson [2017] VSCA 148.
Each case has its own features. As noted in Dalgliesh, a particular sentence is not a precedent. Rather, what is required is consistency in approach.
Purposes of sentencing
The basic purposes for which a Court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims, if any.
I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society.
As noted in the prosecution sentencing submissions, under s. 10AC of the Sentencing Act the court must impose a term of imprisonment and fix a non-parole period of not less than three years for the offence of aggravated home invasion unless a special reason exists.
In approaching the sentencing task I must first determine an appropriate sentence taking into account the matters listed in s. 5 of the Sentencing Act, having regard to the purposes of sentencing that I have just referred to. In sentencing each of you for this offence, considerations of parity are relevant. To put the matter another way, any sentence must ensure that any disparity in treatment does not give rise to an unjustified grievance.
I have earlier concluded that you each bear equal moral culpability for this offence. In this regard I do not accept the submission on your behalf, Ms David, that the fact that you were not carrying a weapon at the time of entry lessened your moral culpability for the offending. Your involvement in the earlier recognisance and then entering the premises through a window to open a door to allow your co-offenders balances the ledger on moral culpability. I have also been unable to find who the instigator of the offence was.
Next, in terms of parity, I must consider your respective antecedents and prospects of rehabilitation. In relation to antecedents I propose to regard them all as broadly comparable particularly when one focuses on the last half dozen years. In relation to each of you this offending is a quantum leap in the seriousness of the offending for which you have previously been before courts. Each of you in recent times has served a short sentence of imprisonment when I include the three months imposed on you, Mr Dean, for offending that occurred prior to this offending. Each of you have significant relatively minor drug-related and dishonesty offences in your criminal record.
It is fair to say that for persons of your age it is somewhat exceptional that you present before this court for an offence of this seriousness without multiple prior convictions and significant sentences for serious violent and burglary offences. This leads to the conclusion that the offending can be attributed to the scourge of methylamphetamine addiction.
Specific deterrence has a part to play in relation to each of you, given your prior offending and drug addiction.
In terms of your prospects of rehabilitation I also regard them as broadly comparable. This offending was drug-related and while I have assessed each of your prospects in the future of rehabilitation as reasonable, that is all premised on each of you desisting from illicit drugs.
An area where I conclude there is a differential between you, Ms David and Mr McLean, on the one hand and you, Mr Dean, on the other is on the issue of remorse. I am satisfied that there is genuine remorse on the part of both you, Ms David and Mr McLean. While you have all accepted responsibility for your conduct and have facilitated the course of justice by early plea, I am not satisfied in your case, Mr Dean, that it accompanied by true remorse. This is a matter that does not weigh in your favour as it does with the other two and is relevant to their prospects of rehabilitation.
A further area where I do see a relevant difference among you is in relation to you, Ms David. As indicated by Assoc. Prof Carroll, your life in recent times has been blighted by undiagnosed schizophrenia and this has led to the voluntary admissions and difficulties in compliance with your medication regime. While I have not accepted that there is a causal link between the offending and your psychiatric condition, your history of your now managed psychiatric condition is a matter that, notwithstanding the seriousness of the offending, calls for the exercise of leniency and a moderation in considerations of general deterrence in your particular case.
Specific considerations - Mr Dean
I now turn to specific considerations in relation to you, Mr Dean. You are to be sentenced for aggravated home invasion as well as for two counts of armed robbery. The armed robbery offences are serious, as there was the use of an imitation handgun. The offence carries a maximum term of 25 years. The whole event is a course of conduct, but, subject to considerations of totality, it is appropriate there be some cumulation on the individual counts.
In sentencing you I have taken into account considerations of totality in that you have served a period of three months' imprisonment that does not count as pre-sentence detention. In fixing a non-parole period I have had regard to your prospects of rehabilitation and to the other matters that I have discussed and have been put on your behalf. I note that your counsel does not submit that there is any special reason under s.10 of the Sentencing Act.
Specific considerations - Ms David.
I turn to specific considerations involving you, Ms David. As well as the count of aggravated home invasion you are also to be sentenced for a count of theft, being the property that was stolen at the premises and which you transferred to the church from where you set out to execute the offence. The property has been recovered and was valued at $1,500. This is a lower-level offence, having regard to the value of the property, and it was recovered.
You are also to be dealt with for the offence of resist the police officer in the station. This is a lower-level matter but is still to be condemned. In fixing a non-parole period I refer to my discussion earlier as to your difficult personal background and psychiatric condition. The evidence of Assoc. Prof Carroll as to your improved condition under proper medication was impressive and that, combined with the efforts that you have undertaken since being in remand, indicates that, subject to abstinence from illicit drugs and your compliance with medication, you have fair to reasonable prospects of rehabilitation.
It is in the community interest that you be given an opportunity to put your life back on track and re-engage with the community.
Specific considerations - Mr McLean
I finally turn to specific considerations in relation to you, Mr McLean. You have had your difficulties in life. A significant period if imprisonment at your age will considerably impact on you. I have taken that into account in sentencing you and in setting a non-parole period. I have also taken into account your reasonable prospects of rehabilitation and your remorse.
You have committed this offence while on bail, which is a matter of aggravation which must be taken into account. Your counsel on the plea effectively did not press for a non-parole period less than the statutory minimum. I am satisfied that there is no basis for finding a special reason in your case. The Verdins considerations do not reach that height and there are no other matters that would come within the narrow confines of a special reason under s. 10A of the Sentencing Act that would meet the substantial and compelling circumstances required.
I therefore accept the learned Crown prosecutor's submission that in your case there is no basis for a special reason such that a non-parole period should be less than three years.
Overall conclusion
This was serious offending in relation to each of you. The sentences of the court must denounce your conduct and send a signal that, those minded to group together to invade homes with weapons for money or to assault the occupants, will be sentenced to lengthy periods of imprisonment regardless of any personal characteristics.
Sentence – Mr Dean
Mr Dean, on the Charge of aggravated home invasion, you are sentenced to six years’ imprisonment. This is the base sentence.
On charge two, the first Charge of armed robbery, you are sentenced to three years' imprisonment.
On Charge three, the second charge of armed robbery, you are sentenced to two years' imprisonment.
On Charge four, possession of a drug of dependence, you are sentenced to seven days' imprisonment.
I direct that six months of each of the armed robbery sentences be served cumulatively upon each other and upon the base sentence, making a total effective sentence of seven years' imprisonment.
I declare that you serve a minimum of four years and four months before becoming eligible to apply for release on parole.
I declare 265 days of pre-sentence detention, and direct that it be noted in the Records of the Court.
I declare, pursuant to s. 6AAA of the Sentencing Act, that had you not pleaded guilty I would have sentenced you to a head sentence of ten years imprisonment with a non-parole period of six years and six months.
Sentence – Ms David
Ms David, on the Charge of aggravated home invasion, you are sentenced to five years' imprisonment. That is the base sentence.
On Charge five, possession of a drug of dependence, you are sentenced to seven days’ imprisonment.
On Charge six, theft, you are sentenced to six months’ imprisonment.
On the Summary charge of assaulting an emergency worker, you are sentenced to 14 days’ imprisonment.
I direct that two months of the sentence of the charge of theft be served cumulatively on the base sentence making a total effective sentence of five years and two months' imprisonment.
I declare that you serve a minimum of three years before becoming eligible to apply for release on parole.
I declare 355 days of pre-sentence detention, and direct that it be noted in the Records of the Court.
I declare, pursuant to s. 6AAA of the Sentencing Act, that had you not pleaded guilty I would have sentenced you to a total effective sentence of seven years and four months with a five year and two month non-parole period.
Sentence – Mr McLean
Mr McLean, on the Charge of aggravated home invasion, you are sentenced to five years and six months' imprisonment. That is the base sentence.
On Charge seven, possession a drug of dependence, you are sentenced to seven days' imprisonment.
On the summary charge of committing an indictable offence on bail, you are sentenced to one month's imprisonment. All sentences in relation to you, Mr McLean, are concurrent.
The total effective sentence is, therefore, five years and six months' imprisonment.
I declare that you serve a minimum of three years and four months before becoming eligible to apply for release on parole.
I declare 355 days of pre-sentence detention, and direct that it be noted in the Records of the Court.
I declare, pursuant to s. 6AAA of the Sentencing Act, that had you not pleaded guilty I would have sentenced you to a total effective sentence of eight years imprisonment with a non-parole period of six years and six months.
I will make the disposal orders sought in relation to Mr Dean and Mr McLean.
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