DPP v Anthony; DPP v Gow [2015] VCC 1116

County Court of Victoria|2015-08-10|Before: Mr P

1 Ashley Keith Gow, you have been charged with the following offences on indictment:

That you and David Anthony, at Tootgarook on 6 December 2014, entered as trespassers, a building situated at 71 Raymond Street, with intent to assault a person therein and at the time, a person was present in the building and that you both knew that a person was present, or you were reckless as to whether a person was present contrary to s77 (1) of the Crimes Act 1958 which carries a maximum term of imprisonment of 25 years.
That at Tootgarook on 6 December 2014, you assaulted Russell Oliver contrary to the common law which carries a maximum term of imprisonment of five years.

2 David Anthony, you have been charged with the following offences on indictment:

That you and Ashley Gow, at Tootgarook on 6 December 2014, entered as trespassers a building situated at 71 Raymond Street with intent to assault a person therein and at the time, a person was present in the building and that you both knew that a person was present or you were reckless as to whether a person was present contrary to s77 (1) of the Crimes Act 1958 which carries a maximum term of imprisonment of 25 years.
That at Tootgarook on 6 December 2014, without lawful excuse, you recklessly caused injury to Russell Oliver contrary to s17 of the Crimes Act 1958 which carries a maximum term of imprisonment of 15 years.

3 The plea commenced on 16 July 2015. It was adjourned for further plea on 27 July 2015, at which time some further material was tendered.

4 Russell Oliver and Justin Oliver met Kristy Thorburne and Carly Pearson at the Dromana Hotel on 26 September 2014. The Olivers, Thorburne and Pearson left the hotel and went to 71 Raymond Street, Tootgarook, which is the house where the Olivers lived. Justin Oliver and Pearson engaged in a sexual liaison.

5 Pearson sent numerous suggestive text messages to Justin Oliver. She told him that she wanted to see him. She told him and that she was pregnant, presumably with his child. She later told him that she was not pregnant. Justin Oliver replied to the text messages, telling her that he was not interested, presumably in having any further relationship with her.

6 Pearson also sent a number of text messages to Russell Oliver. Those exchanges produced a threatening response from Russell Oliver, who threatened to "get" Pearson. He made a number of very threatening responses, one of which was "... you are fucked slut, hope you like gangbang". He also threatened to tell Anthony that she had engaged in a sexual liaison with Justin Oliver.

7 On 5 December 2014, Gow became aware that Pearson and Justin Oliver had engaged in a sexual liaison. Gow contacted Anthony and told him of what he knew, who in turn contacted Pearson, who admitted that she had engaged in a sexual liaison.

8 It was from this point that things seriously spiralled out of control. Gow and Anthony joined up with two unknown accomplices on 6 December 2014 at about 2.10am, with the express intention of going to the Olivers' house.

9 The Olivers were asleep in their house. Russell Oliver heard loud banging at the front door. It was Anthony banging on the door. He called out "Rosebud police, come to the door". That was followed by one of the four of you also calling out "open the fucking door". The Olivers hid in Justin Oliver's bedroom, bracing themselves against the door.

10 Anthony and the two unknown accomplices went around to the back of the house. Anthony kicked the back door open and then entered the house, with the two unknown accomplices turning on the lights in the house. Gow remained at the front door of the house.

11 Anthony and your accomplices were unable to locate either of the Olivers. One of your number tried the door handle of the door to the bedroom where the Olivers were hiding. You all then left the house, leaving the lights on. As you were leaving the house, one of your number picked up some garden shears that were sitting on a table inside the house and removed them from the house.

12 After Anthony and the two unknown accomplices left the house, Russell Oliver came out of the bedroom and turned off the lights. That was observed by Gow, Anthony and the two unknown accomplices who ran back towards the house. Russell Oliver must have seen your approach to the house because he went back into the bedroom where he and Justin Oliver braced themselves against the door. Russel Oliver called 000. While the Olivers were in the bedroom, one of your number was observed to tap on the bedroom window with the garden shears.

13 Anthony and the two unknown accomplices entered the house. Gow remained outside. Anthony and the two unknown accomplices new that the Olivers were hiding in the bedroom. One of you said to the Olivers "we've got you now, your fucken (sic) dead". One of you threatened to slit the throat of Russell Oliver's dog if the Olivers did not come out of the bedroom.

14 Anthony and the two unknown accomplices repeatedly kicked at the bedroom door. While that was occurring, Anthony said "fuck my missus you fucking dog cunt". The kicking of the door caused it to come off its hinges. At about that time, Justin Oliver escaped out of the bedroom window. The door fell on top of Russell Oliver. He had his back to the door. The action of the door falling caused him to fall to the floor on his stomach.

15 Anthony confronted Russell Oliver and asked him "are you the one who fucked my missus?" to which Russell Oliver replied that it was not him. Anthony repeatedly yelled at Russell Oliver asking "who fucked my missus?"

16 Russell Oliver crawled from under the door and tried to escape through the window. He was grabbed from behind and thrown onto a bed. He had a baton in one hand and his mobile phone in the other hand. He was swinging the baton over his shoulder in an attempt to fend off Anthony and the two unknown accomplices. The baton and the phone were taken from him. As he lay on the bed, one of your number had his hands around his neck. One of your number said to him "I'm going to choke you out and break your neck". He was being punched to his back. He estimates that he was punched more than 20 times. He tried to fight back, and at one point bit the finger of one of you.

17 While he was being assaulted by Anthony and the two unknown accomplices, Russell Oliver felt pressure and blows to the back of his right lower leg. The photographs produced during the hearing demonstrate that a sharp instrument was used to slice deeply into his right calf. Anthony and the two unknown accomplices left the house, and then all of you left the Olivers' property.

18 Russell Oliver climbed out of the window of the bedroom. He hid behind a car outside the house. As he was in that position, the garden shears were thrown over the car, landing 2 metres away from him.

19 In between Anthony and the two unknown accomplices breaking down the door and entering the bedroom until the time one of your number took his mobile phone from him, he was on the phone to an operator who asked him a series of questions to identify himself and where he was. The recording of what transpired in that time is chilling. Russell Oliver is heard letting out bloodcurdling screams while being assaulted by Anthony and the two unknown accomplices.

20 Russell Oliver prepared a Victim Impact Statement. Understandably, the grave assault upon him has left him with a number of lasting consequences. He suffers from depression and anxiety. He is in fear of being assaulted again by both of you, and now suffers interference with his sleep, concentration, his capacity to function mentally and he has become hypervigilant. The severe wound to his lower leg has interfered with the function of muscle, blood bearing vessels, the Achilles tendon and nerve supply to his lower leg. He has lost a significant level of function in his leg. That loss of function has interfered with his capacity to work, and to engage in social and recreational activities.

22 Your Counsel urged me to conclude that your involvement in what occurred at the Olivers' house is to be significantly distinguished from the role of Anthony and the two unknown accomplices.

23 There were three reasons which were advanced in support of that submission: firstly, you had no knowledge of the Olivers, but I assume that means you had no axe to grind with them as did Anthony; secondly, you were very drunk at the time when all of these events took place. You had apparently drunk something close to 20 cans of beer before you, Anthony, and the two unknown accomplices, set out to find the Olivers; and thirdly, you remained outside while Anthony and the two unknown accomplices entered the house and assaulted Russell Oliver.

24 Your counsel submitted that the reason why you have been charged with common law assault is that it is an agreed reflection of the extent of your involvement in what occurred in the bedroom, and that your position is to be clearly distinguished from that of Anthony and the two unknown accomplices. Anthony, of course, has been charged with recklessly cause serious injury which is a much more serious charge than that of common law assault.

25 Your Counsel referred to your criminal record and submitted that it is not the criminal record of a violent man:

Your prior history goes back to 21 August 1995 when, without conviction, you were fined $100 for use cannabis.
On 18 November 1996, you were fined $100 for theft from a motor vehicle.
On 17 November 1997, you were dealt for handle, receive, and dispose of stolen goods; obtain property by deception and use and possess heroin. On the property charges, you were sentenced to nine months' imprisonment, which was suspended for two years.
On 6 January 1999, you were dealt with for a breach of the suspended sentence. The sentence of nine months' imprisonment was restored. On the same day, you were imprisoned for seven days concurrently for one count of theft from a shop; with conviction, fined an aggregate of $75 on the breach of a Suspended Sentence Order; imprisoned for one month concurrently for handling, receiving and retaining stolen goods, and you were imprisoned for one month concurrently on one count of obtain property by deception.
On 3 March 1999, with conviction, you were fined an aggregate of $350 for counts of possessing a prescribed weapon without an exemption and possessing a regulated weapon.
On 9 January 2003, you were convicted and released on a Community-Based order of six months for cultivating a narcotic plant; namely, cannabis.
On 26 June 2003, with conviction, you were fined $200 for failing to comply with the Community-Based Order and you were convicted and fined $1,000 for cultivating a narcotic plant; namely, cannabis.
The last occasion before appearing before this Court was on 24 January 2013 when you were imprisoned for one month on one count of cultivating a narcotic plant; namely, cannabis, which was wholly suspended, and with conviction, you were fined $800 on counts of possessing and using cannabis.

26 Your counsel submitted that the possession of the prescribed weapon was minor in nature. You were found to have a knife in the dashboard of your car. The conviction and fine are probably consistent with a relatively minor offence. Otherwise, it was submitted that you have no prior history for violence.

27 Your counsel also submitted that you have a history of drug abuse, and that is quite obviously reflected in your prior history. You have possessed and used heroin and cannabis. It was submitted that you have had a very serious problem with your association with alcohol. Your abuse of substances and alcohol began when you were in your early twenties. You are now 40 years of age.

28 You were born and raised in Rosebud. You attended primary and secondary schools in Rosebud. You lacked any motivation to pursue education seriously. You were apparently asked to leave your secondary school while you were in Year 11 when you were about 16 years of age. Unfortunately, your parents separated when you were a teenager. You then lived with your father.

29 You have a daughter by a previous relationship who is now 21 years of age. She lives on Phillip Island. She has a child of her own. I understand that you have a reasonable relationship with her. You also have a 14-year-old daughter by another relationship. Unfortunately, you have no contact of any kind with her.

30 Despite the difficulties you had with your education, and ultimately your abuse of drugs and alcohol, you otherwise appear to have come from a moderately stable background. Your father worked with Hillview Quarries. He worked there for 40 years, which is a matter of distinction in itself to have worked uninterrupted with the same employer for so long. You joined your father at Hillview Quarries from 2008 to 2012. You also worked interstate in the mining industry. You obtained other labouring jobs. You met Anthony when you were undertaking a labouring job as a plasterer.

31 The sad part of your background is that since you left school, your counsel estimates that you have probably worked for a total of 10 years. I understood that to mean not 10 years consistently, but an estimate of the accumulated periods of time when you have worked. Your counsel submitted that you were a heroin user up until about eight years ago. You have continued to use cannabis, and your consumption of alcohol has been staggeringly large, often drinking all day and up to 20 cans of beer in a day.

32 Your life in recent years has been marred with tragedy. Your former partner committed suicide on 2 October 2013. You have suffered the death of members of your family; namely, your grandfather, and uncle and a cousin. It would appear that your abuse of drugs and alcohol and the loss of members of your family has had a marked effect on your mental state.

33 You are now in a relationship with Ms Natalie Rainesbury. Together, you have two children, who are three years of age and five months' old. Your counsel submitted that you have made serious attempts to reclaim a life for yourself, Ms Rainesbury and your two children by leaving the Rosebud area and moving to Bairnsdale. The benevolence of your no doubt loving father has permitted you and Ms Rainesbury to purchase a house in June 2015 in Bairnsdale with mortgage finance.

34 Ms Rainesbury has provided a reference dated 13 July 2015 which describes the fact that you were an outstanding and naturally talented sportsmen. Basketball was your main interest. She was in a relationship with you in 2010. She observed you to abuse drugs and alcohol, which led to the temporary end of your relationship. Your abuse of drugs and alcohol worsened after the suicide of your former partner. Since moving to Bairnsdale, she describes the attempts you have made to seek treatment and to reform your previously poor social and domestic habits. She has recounted your statements of remorse for what occurred on 6 December 2014. Inherent in her reference is optimism that you have a worthwhile and productive life with her and your children in Bairnsdale.

35 You are not working. You are in receipt of Newstart benefits through the Department of Social Security. You, and Ms Rainesbury, receive parenting benefits also from the Department of Social Security. Ms Rainesbury works part time in a restaurant. She is also studying for a qualification in human resources through an online course. She has 18 months left before she completes that qualification. The arrangement between the two of you is that while she busies herself with work and study, that you care for your children.

36 Your father and your stepmother have also provided a reference. The reference is short, but it resonates with optimism on the part of your father, that moving from Rosebud to Bairnsdale is a positive step, and your stepmother has expressed similar sentiments. She describes your temperament as being honest and reliable and someone she trusts. She described you as a very good father to your children. You have made expressions of remorse to her.

37 You commenced treatment with Ms Arranga, psychologist, on 24 September 2014. By the time she provided a report dated 10 December 2014, you had seen her on four occasions, the last being on 9 December 2014. Essentially, her report contains a lot of detail of your family, social and employment history and your psychological and physical health problems. She recorded that you acknowledged the necessity for you to cease abusing drugs and alcohol. She also recorded that you expressed shame for what occurred on 6 December 2014, because you did not consider yourself to be a physically aggressive person. It would appear that when she last saw you, that you expressed an understanding that you needed to cease abusing drugs and alcohol, but it is unclear to me whether in fact you had done so by that stage.

38 You attended Peninsula Health, and in particular, its Frankston and Mornington Drug and Alcohol Services, on 8 December 2014, seeking assistance for your abuse of drugs and alcohol. You underwent a comprehensive alcohol and other drug assessment on 9 December 2014 and reported to the author of the report that you had abstained from alcohol over the preceding weekend, and that it was your plan to maintain your abstinence. It would appear that your move to Bairnsdale interrupted the counselling and treatment which were available through that service.

39 After you moved to a Bairnsdale, you were referred to the East Gippsland Centre for Mindfulness Based Psychotherapy by your general practitioner. You first attended for counselling on 29 January 2015 and by the time the counsellor composed a report dated 25 May 2015, you had attended six sessions of counselling in an endeavour to give up the abuse of drugs and alcohol. The author of the report referred to your difficulty in overcoming cravings for drugs and alcohol because of your entrenched pattern of behaviour during stressful periods in your life. The author recommended that you undertake further counselling.

40 You have also attended the Gippsland Lakes Community Health for counselling for what is described by the author as problematic substance abuse in a report dated 13 July 2015. You attended seven sessions of counselling between 9 January 2015 and 12 May 2015, but during the same period, you rescheduled appointments on two occasions and did not attend on four occasions.

41 On 27 July 2015, your counsel informed me that despite an attempt to obtain a report from Gippsland Lakes Community Health, it was unsuccessful because that organisation has a regrettable policy that it will not provide a report on your progress or your treatment. I was referred to its letter dated 22 July 2015 in which that policy is stated clearly. Your counsel informed me that you last attended Gippsland Lakes Community Health on 24 July 2015. The Gippsland Lakes Community Health confirmed that to be so in a letter dated 24 July 2015.

42 On 6 December 2014, you were apprehended by police at about 2.53am. You were interviewed at the Dromana police station. During the interview, you admitted your part in what occurred earlier that night. You admitted that you knew that Anthony and the two unknown accomplices intended to go to Justin Oliver's house to "sort him out". You thought that it would not amount to much more than Justin Oliver being punched in the ear, or something like that. You referred to the extraordinary amount of alcohol that you had consumed that night, and before you met Anthony and the two unknown accomplices. You expressed remorse by describing your conduct as a disgrace and shameful.

43 You were the one who informed Anthony of his wife's infidelity with Justin Oliver. You clearly understood that Anthony was angered by the disclosure of that infidelity. You willingly accompanied him, and the two unknown accomplices, to the Olivers' house. You must have known that there was a likelihood that Anthony, and probably the two unknown accomplices, intended to assault Justin Oliver. That must have become plain to you when the four of you were at the front door, and after the attempt to impersonate a police officer failed and one of your number calling out "open the fucking door". It was a statement resonating with violent intent.

44 You must have known that Anthony, and the two unknown accomplices, intended to gain entry to the house. You must have known that when they went to the back of the house it was because they were trying to find a means of entry. It is unclear to me why you remained at the front of the house, but I strongly suspect that you did so because you were actively involved at that stage in attempting to get into the house and confront whoever might be in the house.

45 Whilst it is true that you did not enter the house initially or later, you did return with Anthony and the two unknown accomplices when all of you observed someone in the house turning off the lights.

46 What you did cannot be easily mitigated by simply saying that you remained outside on the two occasions that Anthony and the two unknown accomplices entered the house, and that you did not engage in the savage assault that was occasioned on Russell Oliver. There was a degree of premeditation on the part of all of you in forming a group jointly intent upon at least confronting Justin Oliver, and with the real likelihood that Justin Oliver was not just to be confronted, but assaulted.

47 The crime of aggravated burglary is a grave crime. That is demonstrated by the fact that it carries a maximum term of imprisonment of 25 years. In Hogarth v R [2012] VSCA 302, the Court of Appeal described aggravated burglary in the following way:

"Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householders, irrespective of what may occur after entry."

48 It is a statement which could have been written as a very apt description of what occurred on this night. The community has a legitimate expectation that persons who invade private homes with the intention of wreaking violence on the occupants must be punished sternly. There must be a strong expression of general deterrence, and an expression of the community's denunciation of your conduct.

49 I accept the submission made by your counsel that you are probably not a violent man. There are two reasons why I think that is probably so: firstly, you have no prior history of violence; and secondly, you stepped back from the violent intentions of Anthony and the two unknown accomplices by staying outside the Olivers' house. Whilst you must be specifically deterred from engaging in this conduct again, I accept that it is unlikely that you will.

50 Your counsel submitted that I should release you on a Community Correction Order for some years with a number of conditions, which I will return to later. I am not persuaded that releasing you only on a Community Correction Order will amount to a just sentence.

51 Your Counsel referred me to Boulton v R [2014] VSCA 342, and in particular, the observations of the Court of Appeal that the availability of a Community Correction Order as a viable sentencing option in the light of s5(4C) of the Sentencing Act 1991 which places an obligation on a sentencing judge not to impose a sentence that involves confinement unless the purpose or purposes for which the sentence is imposed cannot be achieved by a Community Correction Order. The Court of Appeal observed that the introduction of Community Correction Orders as a viable sentencing option has changed the sentencing landscape to the extent that the conventional wisdom of whether prison is really the only option in sentencing must be re-thought. Furthermore, observations were made about the grave disadvantage of imprisonment and the unique advantages of a Community Correction Order which allows punishment to be imposed, while at the same time advancing an offender's rehabilitation in a way that imprisonment cannot. That was said, no doubt, in the context of the well understood position that imprisonment must always be a last resort when consideration is given to what constitutes a just sentence, and that all of the other sentencing options which must be considered before a sense of imprisonment is imposed.

52 However, the foregoing cannot mean that s5 has a significantly reduced application and that other sentencing principles are less relevant, particularly where the offending is serious. It cannot mean that the instinctive synthesis involved in the process of arriving at a just sentence is no longer part of the reasoning in determining a just sentence.

53 There are other statements in decisions of the Court of Appeal subsequent to Boulton which are relevant to determining the circumstances which call for a Community Correction Order as the viable sentencing option as opposed to occasions when it is not within the range of a just sentence.

54 In Hutchinson v R [2015] VSCA 115, the Court of Appeal observed that a Community Correction Order is not a "Get Out of Jail Free Card" where a sentence of imprisonment is necessary to satisfy the various purposes for which a sentence may be imposed.

55 In McGrath v R [2015] VSCA 176, the Court of Appeal reviewed a number of the Court's own decisions in determining whether the sentence appealed from fell within a range calling for the imposition of a Community Correction Order. It observed that the cases which it reviewed were for less serious offending, and it added that it was open to the particular sentencing judge to conclude that the seriousness of that offending was such that it was necessary to impose a sentence of imprisonment.

56 The sentence I impose on you must be moderated by a number of factors. You have made efforts to remove yourself from an environment where you fell into company which led you to the Olivers' home. Your move to Bairnsdale, the purchase of a home, your involvement in a conventional domestic arrangement with your partner and children, and the efforts you have made to rid yourself of abuse of drugs and alcohol are commendable. I accept that you have sound prospects of rehabilitation, and there is a reduced likelihood of you engaging in serious offending.

57 Whilst you have prior convictions which paint a picture of you being not so much a man of good character, I accept that you have no prior history of violence, and that you are probably not a violent man.

58 After you were apprehended by the police, you made full admissions of what occurred at the Olivers' house, and your involvement. I accept that you candidly and fully described what occurred and the extent of your involvement. I also accept that you pleaded guilty to these offences at the earliest point in time, saving the State the cost of a trial and witnesses the trauma of the trial process.

59 I do not consider that your involvement in what occurred at the Olivers' house and the factors going to mitigation amount to a Community Correction Order alone being an adequate sentencing disposition. I consider that you must be sentenced to an immediate term of imprisonment, with the addition of a Community Correction Order.

60 Please stand, I have considered the gravity of your offending and have moderated the sentence that I will impose upon you by having due and full regard to all the factors which go to mitigation.

61 On the charge of aggravated burglary and common assault, you are sentenced to an aggregate term of imprisonment of three (3) months and then to be released on a Community Correction Order for three (3) years on the following conditions:

(1) That you undergo treatment and rehabilitation by undergoing any assessment and treatment for alcohol abuse or dependency.

(2) That you have medical assessment and treatment that may include general specialist medical treatment or treatment in a hospital or residential facility.

(3) That you have mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.

(4) That you engage in programs that address factors relating to your offending behaviour.

(5) That you not consume any alcohol if you attend any licensed premises or the venues of major events where alcohol is available.

62 If it were not for your early plea of guilty, I would have sentenced you to an aggregate term of imprisonment of 18 months with a Community Correction Order in the same terms as I have now imposed upon you.

64 In your record of interview, you told police that associates of yours told you that the Olivers were coming after you and that they wanted you dead. You also told the police that Russell Oliver had been antagonistic towards you over the preceding 18 months or so. Whatever was involved in that antagonism, you developed a fear of the Olivers, and you developed a belief that they were going to kill you and your family. It was as a result of this, and no doubt because of the liaison between Russell Oliver and Pearson, that you, and your associates, hatched the plan to go to the Olivers' house.

65 You have admitted that what you did on that night is consistent with the summary which I set out earlier. Although you told the police that you did not go there to put the Olivers in fear of their lives, that is what ultimately happened. You and your two unknown accomplices kicked in the rear door and entered the Olivers' house. After seeing the lights turned off, you entered the house again, kicked down the bedroom door, and then what occurred was an occasion of uncontrolled and savage violence. I am in no doubt that you were in a violent rage. There is no evidence to suggest that you were armed with a sharp instrument which was used to seriously wound Russell Oliver, so it is more probable that it was one of your unknown accomplices. Whatever the instrument was, it was used repeatedly and savagely to slice deeply into Russell Oliver's leg.

66 You have a long criminal history going back to 7 February 2000. The following is a short summary of your previous court appearances which have some relevance to the sentence I must impose on you:

On 7 February 2000, you were dealt with for theft, possess heroin and use heroin and, without conviction, you were fined.
On 17 October 2001, you were dealt with for aggravated burglary and attempted theft from a motor vehicle. You were sentenced to 90 days' imprisonment, which was partially suspended, and you were released on a Community-Based Order for 12 months.
On 23 July 2002, you were dealt with for multiple offences including theft of and from a motor vehicle, being unlawfully on premises, burglary, aggravated burglary and breach of the previous Community-Based Order. You were sentenced to 300 days' imprisonment, which was partially suspended.
On 3 April 2003, you were dealt with for theft from a shop and destroying property. You were sentenced to a short term of imprisonment.
On 17 March 2004, you were dealt with for multiple offences including aggravated burglary, theft, theft of a motor vehicle and breach of a Suspended Sentence Order. A fine was imposed for those offences.
On 17 September 2004, you were dealt with for an affray and sentenced to three months' imprisonment, which was suspended for 12 months.
On 9 May 2005, you were dealt with for multiple offences including driving offences, aggravated burglary, theft, theft of a motor vehicle and breach of the Suspended Sentence Order. You were sentenced to imprisonment on the driving offences for one month, which was wholly suspended. It would appear that no penalty was imposed for the other offences.
On 24 August 2005, you were charged with a number of driving offences. You were sentenced to 28 days' imprisonment, which was wholly suspended for six months, and you were fined.
On 22 February 2007, you were dealt with for criminal damage and sentenced to three months' imprisonment which was wholly suspended for 12 months.
On 25 February 2010, you were dealt with for possession of a weapon without exemption or approval and discharging an arrow. You were placed on a Community-Based Order for 12 months.
On 29 June 2010, you were dealt with for theft of a motor vehicle, burglary and theft and sentenced to two months' imprisonment, which was wholly suspended for 12 months.
On 13 January 2011, you were dealt with for failing to comply with a Community-Based Order, possession of a prohibited weapon without exemption or approval and discharging an arrow. You were convicted and fined.

67 Your Counsel submitted that your start in life was hard. Much of what was outlined in that respect is contained in a report of Ms Pamela Matthews, forensic psychologist, dated 15 July 2015.

68 You were born and raised in Cheltenham. Your mother was previously married. She has a daughter of that previous relationship who is now about 45 years of age. You have two brothers born of the relationship of your mother and father. Your mother and father separated when you were nine years of age. Your father remarried. He has a son of that relationship, who is 28 years of age.

69 Your childhood was an unhappy time for you. You were physically chastised by your parents. Your father used a belt on you. Your mother stripped you naked, flushed your head in the toilet, and locked you outside in winter when you were naked. Your parents required you to do a lot of domestic work in and around your home when you were very young.

70 After your parents separated, you lived with your father. After he remarried, you discovered that your stepmother proved to be no better than your own mother. She was violent towards you. It would appear that you felt alienated within your new family. You ran away from home when you were thirteen-and-a-half-years of age. It was at a time when your father and stepmother were experiencing matrimonial problems. You stayed with friends initially, and you began seeing more of your natural mother.

71 You attended three primary schools. You attended a special education unit because of emotional problems you were experiencing. You spent a short time at high school, leaving halfway through Year 9.

72 You were diagnosed as suffering from Attention Deficit Hyperactivity Disorder when you were six or seven years of age. It would appear that the condition was diagnosed by a specialist in Sydney who prescribed Ritalin to aid your learning ability.

73 From 17 to about 25 years of age, you appear to have lost control of the direction of your life very badly. You commenced using speed. You used heroin for about a year when you were 18 or 19 years of age. You were involved in a motorcar accident which left you with injuries. You moved back in with your father and stepmother while you recuperated. You then moved to Melbourne when you were about 20 years of age. It was during this period that you again lost control of the direction of your life very badly. You fell back into drug use. You were homeless. You engaged in criminal activity.

74 It was when you were about 25 that one of your brothers wanted to be reunited with you. That was when you met Pearson. She fell pregnant. It would appear that your relationship with her and the birth of your children became something of a turning point in your life to some degree.

75 Over the last seven years, you have worked as a plasterer in your own business. You developed a very good business. At one time, you employed up to 20 people. Unfortunately, a failure by a builder to pay you for a major job created financial problems for you, with the result that you were forced to lay off a number of your employees. You were depressed for some months and would not leave your house, but you then found the resolve to get back to work, which is what you then did.

76 You continue to use drugs. You use marijuana daily, smoking about three to four joints a day. You do not engage in the use of any other drugs. You drink alcohol infrequently.

77 Your domestic circumstances with Pearson and your children can only be described as very sad. Pearson was dependent upon benzodiazepines, and primarily, Serepax. She was consuming a lot of alcohol as well. Your relationship with her is difficult. She is presently on an antidepressant known as Sertraline. She no longer uses Serepax.

78 You have two children: Mason is about ten years of age and Mercaidez is about eight years of age. Both children have psychological problems, and Mercaidez has a serious physical disorder.

79 Mason suffered viral meningitis at birth, which your counsel submitted has left him with continuing medical problems. He has been diagnosed with Attention Deficit Hyperactivity Disorder, an Oppositional Defiance Disorder and an intellectual disability. A letter from the principal of the Eastbourne Primary School demonstrates that Mason was experiencing behavioural problems and was very impulsive. His behaviour included antisocial behaviour, such as swearing and intimidating other students. He was picked up from school at lunchtime each day because he was less able to be managed in the afternoons.

80 Mercaidez suffers from cystic fibrosis. There is little in the material that was tendered to describe how she is faring physically and emotionally. She has also been diagnosed as suffering from Attention Deficit Hyperactivity Disorder.

81 You, Pearson and your children have applied for assistance from Anglicare Victoria and from Salvocare Eastern. Reports from each dated 20 April 2015 and 9 July 2015 respectively demonstrate not only the difficulties which you and your family have undergone because of the poor state of health of Pearson and your children, but also the enormity of the pressures which the health difficulties of your children have placed upon you and Pearson. The assistance you have been given has enabled you to work towards maintaining stability for you and your family. The author of the report of Anglicare referred to your courtesy and willingness to work with her, and your commitment to your family. The author of the report of Salvocare referred to the reason for your presentation to address problems you were experiencing with finding a stable home environment. You and your family have engaged in a program which seeks to address a number of life issues which include housing, finances, health and parenting. Your role was regarded by the author as being vital in providing stability and support for your family.

82 Your counsel tendered two references: One from the proprietor of Commercial Design and Construct Pty Ltd dated 25 July 2015 attesting to your reliability, trustworthiness and kind nature in connection with his employment of you as a contract plasterer. The author acknowledged that he is prepared to continue to give you work in the future. The other reference is from your father dated 24 July 2015. It pleads for mercy that you not be sentenced to a term of imprisonment because of the fear your father has that a term of imprisonment will result in the complete breakdown of your family unit and put your children at risk.

83 Your counsel submitted that I should release you on a Community Correction Order for some years, with a number of conditions. My reference to the law which I referred to earlier applies equally to your circumstances.

84 Your counsel submitted that I should moderate any sentence I impose on you because of hardship that will be caused to members of your direct family if you are sentenced to an immediate term of imprisonment.

85 In Markovic v R (2010) 30 VR 589, the Court of Appeal observed that reliance on family hardship is an appeal for mercy, and will only be considered if exceptional circumstances are demonstrated. The Court of Appeal also observed that whether or not exceptional circumstances exist is a matter of fact and degree, and that such cases which warrant such a finding will be rare. Additionally, the Court of Appeal directed the sentencing judge's attention to the many examples of cases where exceptional circumstances were found to be present or absent as the guidance the trial judge should consider.

86 I have looked at a number of cases in an effort to find a case that might be comparable to your circumstances. Some cases demonstrate that where direct family members are seriously incapacitated with major health problems, that is sufficient to satisfy the test. One of those, and I stress one of those, is the Director of Public Prosecutions v Gerrard [2011] VSCA 200; (2011) 211 A Crim R 171, which I consider to be instructive.

87 I accept that there are exceptional circumstances in your case which calls for an exercise of mercy on the grounds of family hardship. Pearson is suffering from a mental disorder requiring medication, having been addicted to Serepax before more recently being prescribed the medication she is presently taking. Mason has behavioural problems which appear to me to be major. Not much has been said about the progress of the cystic fibrosis from which your daughter, Mercaidez, suffers; however, it is a progressive and disabling disease. She also has behavioural problems. One of the observations made by the author of the report from Anglicare is the importance of your backup and support for Pearson in the care of Mason and Mercaidez. She describes your role in the family as being a steadying influence in meeting the day-to-day challenges which you and your family have difficulty meeting. Of course, imprisonment will lead to a disruption to your involvement with your direct family, and in financial terms as well. I consider that the exceptional circumstances should be reflected in a material reduction in the minimum term of imprisonment you should serve before you become eligible for parole.

88 I also accept that because of the particular health and other problems which plague the direct members of your family, that will make the experience of imprisonment more burdensome for you.

89 I accept that you have made expressions of remorse in your record of interview. I accept that what occurred on that night was fuelled by your consumption of alcohol. I think it is fair to infer that the two unknown accomplices probably were as well. I am not certain whether you have good prospects of rehabilitation. Your criminal history is riddled with offences of dishonesty and breach of orders, and there is one troubling prior conviction for affray; however, its importance is perhaps diminished by the fact that it occurred eleven years ago.

90 The home invasion on which you embarked involved you as the instigator and the motivator. It was that role which saw Gow and the two unknown accomplices accompany you to the Olivers' house. Whilst it might have occurred without much premeditation, I am in little doubt that you intended to break into the house, if you could not gain entry by other means, and to confront Justin Oliver, and anyone else who might be in the house. It was a confrontational aggravated burglary of the kind described in Hogarth and in Anderson v R [2014] VSCA 255, bringing it into a more serious category of this type of offending.

91 I have paid due and full regard to a number of factors which mitigate the sentence which I must impose upon you: the difficulties you encountered in your upbringing; the difficulties you have encountered in your marriage to Pearson; the difficulties which you and Pearson have encountered in raising your children because of the ill-health of Pearson and your children; your plea for mercy based on the hardship which your family will suffer upon your imprisonment, and the fact that you will find serving a term of imprisonment more onerous because of the situation that your imprisonment will create when your family is deprived of your direct physical and financial support.

92 I consider that the reasoning in McGrath should be applied here. The circumstances of the offending in the cases reviewed by the Court of Appeal were significantly less serious than in your case, which leads me to conclude that you should not be released on a Community Correction Order.

93 In conclusion, in undertaking the instinctive synthesis by having regard to the relevant considerations which I have set out, and arriving at a sentence which is proportionate to the gravity of your offending, I will sentence you as follows:

94 On the charge of aggravated burglary, you are sentenced to a term of imprisonment of four (4) years. This will be the head sentence.

95 On the charge of recklessly cause serious injury, you are sentenced to eighteen (18) months' imprisonment, of which twelve (12) months is to be served cumulatively with the head sentence and six (6) months to be served concurrently.

96 I will fix the minimum term before you will eligible to be released on parole at two (2) years and eight (8) months.

97 If it had not been for your early plea of guilty, I would have sentenced you to six years' imprisonment with a minimum of four years before you would become eligible to be released on parole.

At a glance

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Judgment (101 paragraphs)

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