DPP v Vasu (a pseudonym)
[2022] VCC 15
•17 January 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKAS VASU (A pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2021 | |
DATE OF SENTENCE: | 17 January 2022 | |
CASE MAY BE CITED AS: | DPP v Vasu | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 15 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW - SENTENCE
Catchwords: Aggravated Burglary – Make Threats to Kill – Criminal Damage – Contravention of Family Violence Intervention Order
Legislation Cited: Migration Act s 501(3A); Crimes Act 1958 s 20, s 77, s 197(1) Sentencing Act 1991 (Vic) s 16, s 18, s 6AAA; Family Violence Protection Act 2008 s 123A(2)
Cases Cited:DPP v Meyers (2014) 44 VR 486; Pasinis v The Queen [2014] VSCA 97; DPP v Smith [2019] VSCA 266; Guden v The Queen [2010] VSCA 196; DPP v Worboyes [2021] VSCA 169
Sentence: Convicted and sentenced to two years and nine months imprisonment with a non-parole period in this matter of 20 months.
S6AAA declaration: Four years' and two months' imprisonment, with a non-parole period of two years' and 10 months' imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. Brennan | Emma Turnbull Lawyers |
HIS HONOUR:
1Lukas Vasu[1], you have pleaded guilty on to a charge of aggravated burglary, a charge of make threat to kill, which is a rolled up charge, two charges of criminal damage, and a charge of contravening a family violence intervention order, intending to cause physical and mental harm. The maximum penalties are as follows: aggravated burglary – 25 years' imprisonment; threat to kill – 10 years' imprisonment; criminal damage – 10 years' imprisonment; and contravention of the family violence order – five years' imprisonment.
[1] A pseudonym.
2You also pleaded guilty to the related summary offence of contravening of an interim intervention order, for which the maximum penalty is two years' imprisonment, and committing an indictable offence on bail – three months' imprisonment.
3You were born in April 1981. You are now 40 years old. At the time of the offending, you were living at an address in Roxburgh Park.
4The facts of this matter are set out in the prosecution opening which was tendered as an exhibit on the plea. They are not in dispute.
Summary of offending
5You and Gloria Smith[2] had previously been in a relationship for a period of 11 years. The two of you had several children together. Some of those children were present at the time of offending, including your daughter Kia[3]. Kia was aged 20, and her daughter, was also present. Additionally, Helena Vasu[4], age 14, your child, and Ms Vasu's child was present, and Ali Vasu[5], who was age 10, was also present at the time of the offending.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
6Your relationship with Ms Smith had broken down in 2018. She subsequently formed a relationship with Mr Roderick Royce[6], and they had been living together for about 18 months. All of the children, together with Kia’s partner River Anton[7] and her child lived with Ms Smith and Mr Royce at their address in Rockbank.
[6] A pseudonym.
[7] A pseudonym.
7
You, Mr Vasu, were jealous of the relationship between Ms Smith,
Mr Royce, and they had moved to this address in Rockbank and had kept details of the address from you. That was because of a family violence incident back in 2018 which had led to an intervention order being put in place in favour of
Ms Smith. You had also been charged over the family violence incident in 2018, and you were on bail for that matter at the time of this offending. That matter was subsequently dealt with in August 2021, and for unlawful assault and criminal damage, you received a fine without conviction.
8The history of the intervention order goes back to November 2020, when an interim order was issued by the Sunshine Magistrates' Court, precluding you from having contact with Ms Smith or going within 200 metres of her. The order had some exceptions relating to childcare arrangements. So, at the time of this offending, you were on bail for the earlier matter, and you were subject to an intervention order precluding you from attending at the address where Ms Smith lived.
9The first incident which relates to the summary offence of contravening a family violence intervention order relates to 23 April 2021. On that day, you attended at the address in Rockbank with your youngest child, Ali. You had apparently learned from your children that Ms Smith and Mr Royce were living in Rockbank, and you had driven around the area until you located their vehicle parked out the front of their address.
10On 23 April, you went to the front door. Kia Vasu was home. You entered the house through the unlocked front door and spoke to Kia, asking her whether anybody else was present. Kia told you she was alone. You began methodically attending each room inside the house. You stayed for about five minutes and left, saying to Kia, 'Do not tell your mother I was here'. That is the basis of the summary offence of breaching the intervention order. This matter was reported at the Melton police station.
11Incident 2 gives rise to the charges on the indictment. On 25 April 2021 at approximately 6.10 pm, you drove to the Rockbank address again with Ali, who you were to drop off at some other address, went to the front door and started banging on the door aggressively and screaming. Inside the house were Gloria Smith, Roderick Royce, Matilda Royce, Kia Vasu, Mr Anton, Helena Vasu, and Kia's child. Ms Smith and Mr Royce saw you through a window and barricaded themselves into the front bedroom with Matilda, afraid that you would break in and assault Mr Royce. Ms Smith called Triple 000 to report that you were attempting to break into the house. That Triple 000 call was played during the hearing.
12You could not get into the front door, so you jumped a side fence and went to a rear sliding door of the house. That door was also locked, so you went to a side bedroom window and forced entry, damaging the flywire, and gaining entry into the house. At that point, you had committed Charge 1, the aggravated burglary.
13Helena and Kia attempted to stop you, but you shoved them aside and stormed through the house, smashing items in the process. You yelled, 'Roderick, I'm going to kill you', that is part of Charge 2, threat to kill. You then went to the main bedroom where Ms Smith and Mr Royce were hiding, barricading the door with their bodies. You punched the door repeatedly, creating a large hole. Ms Smith tried to hold the door shut, and as she did it, you punched her in the forehead through the hole in the door.
14Kia and Helena and Kia's partner, Mr Anton, attempted to hold you back while you were trying to get into the bedroom. You then went to the kitchen, picked up a frying pan, returned to the bedroom and began smashing it on the bedroom door. The frying pan snapped from its handle.
15Charge 3 is the criminal damage caused to the bedroom. There is a photograph of this in the depositions. You then yelled, 'I'm going to kill you and your daughter’ to Mr Royce, and you threatened to cut off his head. This is also part of the threat to kill charge. You ripped off your T-shirt and continued to try and enter the bedroom.
16
You were eventually persuaded out into the garage by Kia and her partner,
Mr Anton. In the garage, you picked up a dumbbell and threw it at the windscreen of Mr Royce's vehicle, causing the windscreen to shatter, and the dumbbell to lodge in the windscreen - this can be seen in the photographs in the depositions. You smashed all of the windows on Mr Royce's vehicle before leaving the address in your vehicle, leaving your son, Ali, behind. Charge 4 is the criminal damage to the vehicle.
17You were on bail at the time of committing the offences, which is the basis of the summary offence of committing an indictable offence whilst on bail. The intervention order was in place and that is the subject of Charge 5, which is the contravention of an intervention order, intending to cause physical and mental harm.
18Police arrived at the address at 6.30 pm and observed the damage to the house. They took photographs of same. The house was forensically examined, and statements were taken from the various witnesses.
19
You were arrested on 27 April 2021 and interviewed. During that interview, you said that you had asked your children for the truth about where Ms Smith and
Mr Royce were living. You were told that they were living in Rockbank. You agreed you went to the address because you were angry about something to do with your daughter. You agreed that in relation to the second incident, you jumped the fence, went through the window. You agreed you put your fist through the door and agreed that Ms Smith was really shaken up. You agreed you went to the kitchen and obtained the frying pan, which you used to strike the door. You agreed you went into the garage and found and object and smashed the car. You said your plan was to do violence, and that you reason for trying to get into the bedroom was to beat Mr Royce up. You said that you took your anger out on the car and said that thank God you did that instead. You agreed your kids tried to stop you and accepted that you had been to the address on the day of the first incident.
20So, that is a summary of the events as in this case.
Victim impact statements
21I received victim impact statements from Ms Smith and form Mr Royce. Ms Smith said she was in fear for her life on the night of the incident. She says she now scans the area to make sure you are not around. Your behaviour put a strain on her relationship with her children because they put some of the blame on her and Mr Royce for what happened. She sought professional help for her youngest daughter and her 10-year-old son cries at night because he does not understand what you did. She is now fearful in public. She is now distant with her work colleagues. Your conduct has caused great disruption to the life of your family. She says in her victim impact statement that she and Mr Royce had to pay for all the damage you caused.
22Mr Royce says that since the incident he has been terrified of simple things such as going to the front of his house or going to the shops. He says that he regularly checks locks and always prepares himself for another incident. He has nightmares about the incident. The incident has affected his ability to get to sleep because he relives the ordeal. He has been diagnosed with post-traumatic stress disorder and has been referred for counselling. He says your offending has affected his relationship with Ms Smith and his relationship with your children. He says he has become withdrawn from his family, friends, and work colleagues. The incident has affected his diet and he either eats too much or not enough. He no longer works out and suffers feelings of fear, frustration, and sadness. He has difficulty concentrating at work and he has put off university studies because of the impact of your offending. He refers to having to fix items in the house because the landlord would not cover the damage. He indicates his car was written off by the insurance company due to the damage you caused. He says that as a family they no longer feel safe at home. They had to find new accommodation. And the incident put a massive financial strain on Mr Royce and Ms Smith and the family. His daughter, Matilda, who was in the bedroom during the incident, continues to be frightened by what happened and requires somebody to be with her when she goes into the different rooms of the house.
Seriousness of the offence
23Aggravated burglary is a serious offence reflected by the maximum penalty of 25 years. In the case of Meyers, the Court of Appeal set out a number of factors relevant to the assessment of the seriousness of a particular instance of aggravated burglary. These factors include:
· the offender's intent at point of entry;
· the mode of entry;
· whether the offender was carrying a weapon;
· whether the offender was in company;
· the time of the day at which the burglary took place;
· what the offender knew or believed about who would be inside and about where the people would be; and
· whether the offender was someone of whom the victim was particularly frightened.
24Applying these factors to this incident, your offending is plainly a serious example of aggravated burglary. You entered with an intent to assault in circumstances where there was an intervention order in place preventing you from attending at your ex-partner's address. Both Mr Royce and Ms Smith were clearly frightened of you. Despite being refused entry at the door; you were determined not to be denied and you forced your way in through a side window, damaging the flywire screen in the process.
25The offending cannot be characterised as spontaneous. Before the offending, you involved your children, asking them where Ms Smith was living. You drove around Rockbank until you located the car. You did not just snap. You visited the house twice. You planned your attendance and that you had a pre-formed intent to assault Mr Royce. You knew exactly who was inside, including the children.
26The whole scenario was terrifying for the occupants of the house. Your children were present at the time, and you attended with your 10-year-old child. The presence of your children is an aggravating feature.
27Inside the house, your conduct was very frightening. Ms Smith and Mr Royce had to barricade themselves inside the bedroom in order to avoid you. It seems the incident only really ended because your daughter, Kia, and her partner were able to persuade you into the garage. The damage you then caused to Mr Royce's vehicle, which was a write-off, was very significant and indicative of the rage that fuelled your behaviour.
28This was also offending in the context of family violence. General deterrence and specific deterrence are important sentencing principles. In the case of Pasinis v The Queen [2014] VSCA 97, referred to by the prosecution, the Court of Appeal said in relation to offending of family violence:
'General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.'
29These principles are clearly relevant to this offending and have been reiterated by the Court of Appeal subsequently in the case of DPP v Smith [2019] VSCA 266.
30Your offending in this case was a result of your unwillingness to accept the end of your relationship. I accept the prosecution submission that this was not a momentary lapse of judgment and it was in fact pre-planned offending designed to terrify Ms Smith and Mr Royce.
31Not only was there an intervention order in place prohibiting you from contacting Ms Smith, you were also on bail for earlier offences involving her when you committed the offences in the second incident, or in both incidents.
Personal circumstances
32You are now aged 40. You were born in Samoa. You migrated to New Zealand with your parents in 1987. Your parents remain together. You were the oldest child in the family. You have a younger brother and sister.
33You moved out of your family home at the age of 15 and lived with your cousins for two years before you moved to Australia in 1999. Your parents and brother and sister moved to Australia three years later. You lived with your maternal aunt and uncle for four years before you moved in with your partner.
34You left secondary school at the age of 14. You were apparently expelled for truancy. You have a stable working history. You worked as a leading hand at a factory which makes pallets until you were remanded in custody for these charges. You were with that employer for 15 years. A reference from the general manager at your employer, was tendered. He says that you showed exceptional commitment and work ethic in your employment. He says the company are proud to have employed you and regard you as an asset to the business. He says a position continues to exist for you when you are released. In custody, you have worked as a cleaner.
35You have had one significant relationship in your life. That relationship was with Ms Smith. You have four children with her, as I have previously described. You have a close relationship with your children.
36You describe the circumstances of the breakdown of your relationship and the imposition of an intervention order against you. You moved to your sister's home after the breakdown of the relationship and continued to see your children. You describe being devastated and traumatised by the breakdown of your relationship, and what you describe as the loss of your children. You describe developing panic attacks after, leading to various presentations at hospital and general practitioners.
37You have never been formally diagnosed with a mental health disorder, but you describe as a significant deterioration in your mental health following the breakdown of your marriage. You say that you presented to a general practitioner about panic attacks.
38In custody, you have been prescribed an antidepressant to assist you with sleeping and to calm you down. You apparently have had contact with a psychiatric nurse whilst in custody. You reported some suicidal ideation following the breakdown of your marriage but deny having attempted suicide or engaged in self-harming behaviour.
39You described drinking two to three times a week after the breakdown of your marriage.
Psychological
40A psychological report prepared by Ms Sandra Cokorilo was tendered on your behalf.
41She sets out in her report these symptoms of depression and anxiety and panic attacks, involving insomnia in the period after the separation from your wife and before the offending. You reported to her that these symptoms persisted until the commencement of medication in custody. You said you had feelings of despair and grief after your partner moved out. You describe being depressed and anxious and said you 'just snapped'. You expressed remorse to Ms Cokorilo, and said your behaviour was inconsistent with the role model you want to be for your children.
42She described you as a person with a stable and prosocial history until the breakdown of your marriage in 2018. She said your offending had arisen because of negative life events, being an explanation for first time adult-onset offending. She diagnosed you was having developed a major depressive disorder, panic disorder and generalised anxiety disorder in response to your marriage breakdown. She said your symptoms persisted until you were prescribed medication in custody.
43She said that the effects of your psychological condition impaired your ability to problem solve and led to an increase in negative emotions. She said your conditions also deterred prosocial responses. She said major depression can affect the ability to think clearly and make rational choices.
44She described your depression as currently being in full remission. She noted that you have never received psychological support and you may benefit from such support to develop coping strategies when you are released from custody. She said you had good insight and motivation to rehabilitate, and you had strong prospects of rehabilitation with appropriate support.
Verdins
45Based on Ms Cokorilo's report, Mr Brennan initially submitted that your psychological disorders were manifest at the time of the offending and were realistically connected to the offending, and the Verdins principles have occasion. Ultimately, Mr Brennan did not persist with the submission that the Verdins principles apply.
46The prosecutor, Ms Caruso, submitted that the requisite realistic connection between your mental state and the offending is not established. She submitted that hospital records make no reference to psychological conditions and your general practitioner does not refer to anxiety, depression or grief relating to the end of your relationship.
47Given Mr Brennan's concession in relation to Verdins, I decline to significantly reduce the assessment of moral culpability of general and specific deterrence by the application of the Verdins principles. However, I take these matters into account as matters personal to you and relevant to the assessment of your moral culpability, and indeed your prospects of rehabilitation. I do accept that there is insufficient evidence of a realistic connection for the Verdins principles to apply.
Risk of deportation
48You are a permanent resident of Australia. You have been living here since 1999. You do not, however, have citizenship of this country. Therefore, a sentence of 12 months or more will trigger the automatic cancellation of your visa, pursuant to the Migration Act. You do have appeal rights against visa cancellation, but the spectre of deportation would loom large following a sentence of that duration. I accept the risk of deportation has and will cause hardship to you during your sentence because of the uncertainty about whether you will be deported at the end of your sentence, as well as anxiety at the prospect of a period in immigration detention at the end of your sentence. In your situation, where you have been in this country now for a very long time and where your children were born and will remain here, your deportation from this country would amount an additional significant punitive consequence. I take into account the risk of deportation in both of the ways set out in the case of Guden as important matters in mitigation.
49Of course, what I cannot do is impose an inappropriately lenient sentence to avoid the provisions of the Migration Act.
References
50A number of references were tendered on your behalf. Your younger sister provided a reference for you. She said that she was speaking on behalf of your parents. She described your family-oriented nature and said you had been a kind and loving brother to her and a good son to your parents. She said you were hardworking. She also said that you had been an active member of your church for many years. Your father has been battling prostate cancer for a few years and you have been a big support to him. He has deteriorated since you were remanded in custody. She believes that a significant concern for him has been worrying about your situation. Your father was hospitalised this year with COVID-19 - or last year with COVID-19. Your absence at that time was difficult. She says the possibility you will be deported to New Zealand will weigh heavily on your father, who may never see you again. She says you have expressed remorse for your behaviour, and you understand the repercussions of your actions. And she says your imprisonment has affected your close family emotionally and physically.
51The pastor at your church has also provided a reference. He has known you for 20 years. He says you have been a regular member of the Christian Fellowship Church for the last three years, that describes you as a good helpful person.
52A childhood friend who has known you since birth and describes you as a family-oriented person with a strong faith. He says you are an amazing father to your children. He says you are remorseful and that you regret your actions. He says that with the right external support you would be a positive contributor to the community.
53Another church minister has provided a reference. He is from the Methodist Church. He knows you from his period as a church minister in Coburg from 2009. He remains a close acquaintance of yours. He says you are remorseful and regretful for what you have done.
54Your daughter, Kia, who was present at the time of the incident has provided a letter of support. She says the way you behaved was not indicative of your usual behaviour. She says after the separation with Ms Smith, you supported your children emotionally and financially and you have maintained a strong relationship with her and your other children. She says whilst you have been in prison, you have been able to think through the repercussions of your actions. She says your imprisonment has put a strain the relationship between you and her. I take all of those matters into account in assessing your remorse, insight, and prospects of rehabilitation.
Good character
55You have no relevant prior convictions, but you do have the subsequent conviction relating to the offending against Ms Smith in 2018. Mr Brennan relied on your previous good character as a significant mitigating factor, and I have taken this matter into account in formulating the sentence in this matter. The absence of a criminal history is significant in the assessment of your prospects of rehabilitation and the weight to be given to specific deterrence. As to your prospects of rehabilitation, I regard them as reasonably positive. The risk factor in your case is your demonstrated inability to accept the end of an intimate relationship and to treat your partner as though she was your property. If you do not change this type of thinking, a risk of re offending remains in the context of intimate relationships.
Guilty Plea
56You pleaded guilty to the charges in this case at a very early stage. No witnesses were cross-examined. I accept your guilty plea indicates remorse and a willingness to facilitate the course of justice. You also cooperated with the police in the record of interview and made all admissions, and I take this into account. The utilitarian value of your plea is significant. You have spared the witnesses the ordeal of reliving the incident. You have saved the Court the time and the resources to conduct a trial. This utilitarian value of the plea is heightened in the current circumstances where the Court faces a significant backlog of criminal trials as resulting from the pandemic. This increased utilitarian value was recognised by the Court of Appeal in the case of Worboyes and in other cases, where the Court said that in order to encourage guilty pleas, the sentencing discount must be palpable. I have taken these matters into account in arriving at the appropriate sentence in this case.
Custody
57In custody at Port Phillip Prison, you have been working as a billet in your unit. You have had no visits due to the restrictions in prison in response to the pandemic. You have also been subject to numerous lockdowns. Additionally, rehabilitative programs have been limited during the pandemic. These matters have increased the burden of your period on remand, and I take that into account as a mitigating matter. Furthermore, your father is ill, and you are extremely worried about him. His health, together with the risk that you will be deported has further increased the burden of your imprisonment.
Totality
58The totality principle requires that the overall sentence I impose must be proportionate to the totality of your offending – substantial concurrency is required to achieve that outcome in this case. The need to avoid double punishment for the offences of offending on bail and the indictable family violence order breach dictates complete concurrency for those offences. Additionally, the offences in this case are all closely linked in time and purpose, a further factor in favour of significant concurrency. That said, I have had regard to s16 of the Sentencing Act, which provides that sentences for offences committed on bail are to be cumulative unless otherwise ordered.
Submissions
59Mr Brennan submitted that a combined period of imprisonment and a community correction order was within the range. The prosecutor, Ms Caruso, submitted that this was very serious offending and a period of imprisonment with a non-parole period was the appropriate sentence. Both parties took me to comparative cases as examples of current sentencing practices which are a guide, but not a controlling factor in sentencing. I have had regard to those matters.
60The purposes of sentencing include just punishment, deterrence, both general and specific, denunciation, and community protection. In this case, I have already mentioned that general deterrence assumes significant importance.
Denunciation and specific deterrence are also relevant. I must also have regard to your rehabilitation, and the sentence must attempt to establish conditions to facilitate that rehabilitation.
61In fixing the non-parole period, I have had regard to your previous good character, and my view that you have reasonably positive prospects of rehabilitation, and to the other mitigating factors. And I form the view that a lengthy or a significant period of supervision on parole is appropriate. It follows, from that remark, that I have ultimately formed the view that the appropriate sentence in this case is one of a head sentence with a minimum non-parole period.
62I have done my best to balance the objective gravity of the offending against the mitigating factors that apply in this case.
Sentence
63In respect of this matter, the sentence is as follows:
64Charge 1: aggravated burglary, you are convicted and sentenced to two years' imprisonment.
65Charge 2: threatening to kill, you are convicted and sentenced to nine months' imprisonment.
66Charge 3: criminal damage, you are convicted and sentenced to eight months' imprisonment.
67Charge 4: criminal damage, you are convicted and sentenced to 10 months' imprisonment.
68Charge 5: contravening a family violence order intended to cause fear and harm, you are convicted and sentenced to eight months' imprisonment.
69For the summary offence of contravening a family violence order, one months' imprisonment.
70And committing an indictable offence on bail, one month imprisonment.
71I order that two months of the sentence on Charge 2, two months of the sentence on Charge 3, four months of the sentence on Charge 4, and the sentence for the summary offence of contravening a family violence order are cumulative upon the base sentence for Charge 1 and upon each other, which makes a total effective sentence of two years and nine months. I fix a minimum non-parole period in this matter of 20 months.
72Pursuant to s18 of the Sentencing Act, I declare 265 days of pre-sentence detention are to be deducted from the sentence that I have imposed. Pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a sentence of four years' and two months' imprisonment, with a non-parole period of two years' and 10 months' imprisonment. Do those figures add up?
73MR BRENNAN: Yes, Your Honour. So, just to confirm, on Charge 5, that is - - -
74HIS HONOUR: That is eight months concurrent.
75MR BRENNAN: Wholly concurrent, and then the summary breach, that is one months.
76HIS HONOUR: One month. That is one month and that is cumulative. So, it is two months cumulative on Charge 2, two on Charge 3, four on Charge 4, and one month on the summary offence of contravening a family violence order. It makes a total effective sentence of two years and nine months, and I fixed a minimum non-parole period of 20 months. 265 days pre-sentence detention, and I have already indicated s6AAA.
77Now, was there a forfeiture order?
78MS CARUSO: No, Your Honour. No ancillary orders.
79HIS HONOUR: All right, and so no ancillary orders.
80MS CARUSO: No ancillary orders. Sorry, Your Honour, no.
81HIS HONOUR: All right, great. All right, I thank both counsel for their assistance. I will now adjourn the court.
82MR BRENNAN: If the court pleases.
- - -
6
0