R v Vassallo

[2016] NSWDC 381

District Court

New South Wales

Medium Neutral Citation:	R v Vassallo [2016] NSWDC 381
Hearing dates:	4 November 2016
Date of orders:	04 November 2016
Decision date:	04 November 2016
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentenced to imprisonment for 1 year with a NPP of 6 months and 1 day
Catchwords:	CRIME – SENTENCE – Break and enter a dwelling house with intent to commit a serious indictable offence (intimidation) in circumstances of aggravation (knowing there were persons present in the house) – Crimes Act 1900 s133(2) – Offender and his partner arguing – Offender breaks and enters a house seeking to continue talking to his partner – Arrested later that day (14 March 2016) and imprisoned for 6 months and 1 day before being released on parole – Unusual crime – Very low likelihood of reoccurrence – Offender and partner now happily residing together with a son born 3 days before sentence – 25% discount for early plea of guilty
Legislation Cited:	Crimes Act 1900
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Christopher Vassallo (Offender)
Representation:	Counsel: Ms Hubbard (Crown) Mr M Thangaraj (Offender)   Solicitors: Solicitors of the Department of Public Prosecutions (NSW) (Crown) Watsons Lawyers (Offender)
File Number(s):	2016/80721
Publication restriction:	No

Judgment

1. HIS HONOUR: Christopher Vassallo stands for sentence as a consequence of pleading guilty to a charge that on 14 March 2016 at Campsie in this State, he did break and enter a dwelling house situated at 30 Campsie Street, Campsie with intent to commit a serious indictable offence therein, namely, to intimidate Kylie Watson in circumstances of aggravation, that is, he knew there were persons present in that house at the time at which he broke into it.

2. It is accepted by the Crown that the offender pleaded guilty at the earliest available opportunity and is therefore entitled to a discount of 25% of the sentence properly to be passed upon him because of the utilitarian value of the plea and because of the contrition and remorse which it discloses.

3. At the relevant time the offender and Ms Kathryn McCure had been in an intimate relationship for approximately 12 months. At the time Ms McCure was pregnant to the offender. The pregnancy had been announced, according to the evidence before me, in February 2016. However, there was some disharmony between the couple at times. Many couples, even couples who have been married for decades, experience difficulties from time to time. The couple had been arguing, according to the evidence before me, about their accommodation in the early part of this year. They were living in a cramped and cold flat above a shop and neither had a job so that income was scarce.

4. On 14 March 2006 shortly after 1pm, Ms McCure contacted her friend Ms Kylie Watson and made arrangements to visit her at her home at 30 Campsie Street, Campsie. Ms McCure told Ms Watson that she had been arguing with the offender. Ms Watson agreed to collect Ms McCure from her home and take her to Ms Watson’s house. That occurred.

5. At approximately 4.30pm that afternoon the offender called Ms Watson on her mobile telephone in order to speak to Ms McCure. The couple ended up having a conversation that lasted about 25 minutes. At about 5pm the offender drove to Ms Watson’s home where there were present, not only Ms Watson and Ms McCure, but also Ms Watson’s partner Gabrielle Doyle. He tried to attract the attention of those in the house, perhaps specifically Ms McCure, by sounding the horn of his Toyota HiLux repeatedly when it was parked out the front of the house. Anticipating that the offender might enter the house to speak with her, Ms McCure then went to the bathroom and shut the door behind her. Ms Watson ran to the front door of the house and closed it, locking it shut using the deadbolt.

6. By this time the offender had approached the house and demanded that Ms McCure come out to speak with him. Ms Watson told him that he could not do so, that he had to leave, and that she would call the police. The offender started banging on the front door. The offender then yelled out that he would “kick the door down”. Ms Watson left the front door and went to the telephone and dialled 000 as she feared for her safety. While that was occurring the offender kicked open the front door. The deadbolt ripped off the doorframe and the wood from the doorframe splintered onto the ground and the glass panel in the door was cracked. The offender then entered the house and approached Ms McCure. He asked her to go outside and talk, but she refused. The offender then picked up Ms McCure’s handbag and went out the front door, followed by Ms McCure. The offender entered into his utility truck and Ms McCure did likewise. They then drove off together in that vehicle.

7. At 7pm that same evening the police attended upon the residence of the offender and Ms McCure and knocked, but did not receive any response. Ms McCure was then observed by the police running out of the premises and was intercepted. Shortly afterwards the police saw the offender walking out onto the rear balcony of the house with his hands in the air. He was then arrested and taken to the Burwood Police Station where he was taken into custody. The offender declined to participate in an electronically recorded interview. The offender was refused bail from that date, 14 March 2016, until when granted bail by the Supreme Court on 14 September 2016, six months and one day later.

8. The only other offences committed by the offender were offences of contravening a prohibition or restriction in an ADVO and of possessing a prohibited drug. The possession of the prohibited drug was on 24 July 2014. The domestic violence offences occurred in August, September and October 2014 and concerned an earlier relationship that the offender had.

9. The offender is now 33 years old. He is an only child. He had a conventional upbringing in Australia and he appears to have been indulged by his parents. There has been no suggestion of any adverse experience in his childhood or early years. He attended St Patrick’s Primary School at Guildford and then Patrician Brothers, Granville before completing his high schooling at Doonside Technology High. During year 10 he was expelled for misbehaviour but was allowed to sit the School Certificate at the end of the year. The offender was an average student.

10. After year 10 he found work as a concreter. He also found work tree lopping, delivering windows and doors, bricklaying, floor tiling and roof tiling. His last job was a concreter for the Blacktown City Council with whom he worked for five years before injuring his right knee. Owing to domestic disharmony and the work-related injury, the offender lost his employment with the Blacktown City Council.

11. The offender’s first long-term relationship was with a lady who he now describes as his ex-wife. That relationship lasted eight years. The couple married and bought a house and had two children, Chloe and Adam. The relationship ended in July 2014 after the birth of Adam but the breakup appears to have been related to an allegation of infidelity by the offender’s wife. The offender and Ms McCure have now been together for two years. Ms McCure gave birth to their son last Tuesday. They have named their son Isaac. The relationship between Ms McCure and the offender has now been established on firm ground. They have been living together since the offender was released on bail. They are living together at Richmond. Ms McCure has provided to the Court a reference dated 2 November 2016 in which she speaks highly of her partner, the offender, and of the steps which she took to persuade the Local Court at Burwood to amend an AVO, which she did not want, so that the offender could live with her and their son. Ms McCure ended her letter to me thus:

“Since being released from custody, Chris has been attending counselling and actively looking for work. I am positive he will not reoffend. After losing six months of his life and seeing the pain and suffering his time in custody caused his parents and myself, Chris is focussed on putting all of this behind us.”

12. There are a large number of other testimonial references before me, each of them attest to the current offence being completely out of character for this man and that the conduct which it displays is conduct which is quite alien to the person standing for sentence.

13. The crime can best be understood as being a drug fuelled overreaction to a normal domestic crisis. When the offender separated from his wife he sought solace in drugs and commenced smoking crystal methylamphetamine, otherwise known as ice. He was using ice each day and that would explain, in the Court’s experience, his sudden decision to act violently by kicking down the door of Ms Watson’s house. It would appear that the drug offence to which I earlier referred was the possession of crystal methylamphetamine and it appears that the domestic violence offences all resulted from the breakup of the earlier relationship with his former wife.

14. Placed before me is a report from Dr Mark Milic, a clinical psychologist who interviewed the offender at Parklea Correctional Centre on 4 July 2016. Dr Milic tells me that at that time the offender was “tearful and tremulous”. The offender described his experience of being in gaol as being “similar to hell”. The offender spent his first 16 days in custody in the police cells at the Police Centre at Surry Hills. While he was there he was assaulted by another prisoner and suffered a broken nose which required treatment at St Vincent’s Hospital. Since then the offender has had a problem with his teeth and fillings, and also his nose, and expressed the view to Dr Milic that on his release from custody he would need to seek treatment from both a dentist and for his nose. The offender also told Dr Milic that being in gaol he saw many assaults being committed on prisoners for no particular reason at all and complained of having nightmares and poor sleep because of his experience in gaol. That is confirmed by Ms McCure who said in her letter of 2 November 2016 that he still suffers from nightmares from what he saw happening when he was in gaol. According to the history obtained by Dr Milic, the offender remained “drug free” since he was admitted to gaol, but there clearly was a relapse shortly thereafter.

15. The custodial records before me in exhibit 1 and the pre-sentence report in exhibit 12, indicate that on 22 July 2016 the offender committed a number of offences, including assault, disobeying a direction, possession of a drug and possession of tobacco/e-cigarette, which is the first time I have seen that particular custodial offence stated on a custodial record. For those offences the offender was in essence deprived of visits for 42 days and taken off buy‑ups and phone calls for 21 days. That indicates that the relapse was a major one, perhaps engendered by depression.

16. Dr Milic tells me that on testing there were prominent symptoms of anxiety and depression at the time that he interviewed the offender. He also thought the offender showed “dependent personality tendencies”, which of course is a long term intrinsic condition, not something acquired.

17. Dr Milic’s report and pre-sentence report both refer to the offender having a gambling problem, but from what is stated in the pre-sentence report it has been largely controlled and the offender now only gambles once a fortnight, and when he does so, does not spend more than $100. Even that, for a young unemployed man who supports a nursing mother and a very young son, is an excessive spend when there is no income being generated.

18. The pre-sentence report recommends the offender be assessed for psychological counselling, ongoing gambling counselling and monitoring of his drug use and his “finances”. Presumably that relates to the gambling problem. It is clear the offender has undertaken counselling. He is now currently being counselled by Dr Lisa Fahey at Hawkesbury House. He commenced counselling there on 24 October this year.

19. The offender tells me in his letter to me that, “I never want to go to gaol again”, which in light of what I have already recorded, I can accept as being the truth.

20. I also accept that this offence was committed out of character and that the prospects of any recurrence of the like behaviour is extremely low. I accept that given his current circumstances the offender is unlikely to reoffend. The prospects of rehabilitation are very good provided the offender stays away from crystal methylamphetamine.

21. This case is very unlike most aggravated breaking and entering cases with intent to commit a serious offence within the premises broken into. Most breaking and enterings involve stealing, and are generally committed by young people seeking to obtain goods or valuables, the valuables to be sold for cash and the cash obtained from valuables taken to be used to support a drug habit. The current breaking and entering was merely to obtain access to the offender’s partner whom he wished to discuss his relationship with. Unfortunately in the process of doing that, he admits that he intimidated Kylie Watson the occupant of the house in question.

22. However, the seriousness of the offence must be acknowledged because Parliament has imposed a maximum penalty of 14 years imprisonment. There is no standard non-parole period.

23. I have come to the view that an appropriate commencement point for the current sentencing exercise is a term of imprisonment of one year and four months, that is a period of 16 months. I discount that by 25% to acknowledge the utilitarian value of the offender’s plea and the contrition and remorse which that plea shows. I therefore reduce the sentence to one year’s imprisonment. I have no hesitation in finding special circumstances in this case. The offender has now a partner and a very young child to support. He is undertaking the counselling which was recommended for him by the Department of Community Corrections in the pre-sentence report and otherwise can use the supervision and assistance of Community Corrections in order to get his life back together.

24. In my view, the time spent in custody, six months and one day, is an adequate non-parole period and the balance of the sentence can be spent on parole.

25. Christopher Vassallo, on the charge that on 14 March 2016 at Campsie in this State, you did break and enter a dwelling house situated at 30 Campsie Street, Campsie with intent to commit a serious indictable offence therein, namely, to intimidate Kylie Watson, in circumstances of aggravation, that is, you knew there were persons present in that house, you are convicted. I sentence you to imprisonment. I set a non-parole period of six months and one day, commencing on 14 March 2016 and expiring on 14 September 2016. I impose a further period of imprisonment of six months less one day to commence upon the expiration of the non-parole period and expiring on 13 March 2017. The total sentence is therefore one year, comprising the non-parole period of the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. It is a term of your release on parole that you obey all reasonable directions of Community Corrections. You are to report to the Community Corrections office at Windsor within seven days.

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Decision last updated: 24 February 2017