Subject: Criminal law - sentencing - aggravated burglary, intentionally cause injury, make threat to kill, commit indictable offence whilst on bail.
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Tyrone Simpson, you have pleaded guilty to one charge of aggravated burglary, one charge of intentionally cause injury, one charge of make threat to kill and in addition, a summary charge, Summary Charge 8, commit an indictable offence - that is, aggravated burglary whilst on bail.
You have also admitted your prior criminal history. You do have an extensive history that spans a period from 18 August 2008 until 5 August 2016. You have prior criminal convictions for driving-related offences, dishonesty and drug-related offences. Significantly, there are no prior court appearances or convictions in respect to crimes of violence.
The charges are serious and that is reflected in the maximum penalties that are prescribed by Parliament. They are 25 years' imprisonment for aggravated burglary, 10 years' imprisonment for the intentionally cause injury and make threat to kill charges and 30 penalty units or three months' imprisonment in respect to the charge of commit indictable offence whilst on bail.
The offending relates to events that occurred on 7 March 2017 and the victim in this matter is Kiefer Aaron Rodriguez, a 25-year-old male, who was known to you.
I will now sentence you on the basis of the Crown opening that was admitted.
It is accepted by the prosecutor that Ricky Long, your co-accused, was the principal offender and your role was significantly lesser than that of Mr Long. Your role was limited to attending Mr Rodriguez's home in company with Mr Long pursuant to an agreement to assault the victim and that you had intentionally assisted and encouraged Mr Long.
I note you were aged 30 at the time of the incident. You are now 31.
The victim was not well-known to you personally but you had met him on previous occasions. The context to the offending was that Ricky Long had a grievance with the victim based on Ricky Long's belief of the victim's attitude and conduct towards his sister Ashley and another female, Candice. At the time of the offending, you were living with your girlfriend, Ashley Savage, who is the sister of Ricky Long, and Ricky Long.
On the afternoon of the offending, you had been drinking steadily with Ricky Long and another friend, Corey Zagami. At one point you all left the unit to attend to some messages. At some point, Long decided to pay the victim a visit. Prior to leaving your house with Ricky Long, you had discussed going to the victim's house to punch him out.
You attended at the victim's unit. The other male, Mr Zagami, was also present with you on that occasion but he was not involved. You and Long got out of the car and knocked on the victim's door. The victim was alone and he answered the door. When he opened the door, he saw Mr Long. The security door was closed. The victim attempted to lock the security door but both you and Long grabbed the screen door. Long then kicked it open and forced his way into the house. He punched the victim to the face and the force of the punches were such that the victim went into a foetal position and in fear, urinated in his pants.
All the while, you stayed at the front door holding it open with your foot inside the door whilst Long continued to assault the victim. At all times you were intentionally assisting and encouraging Long in the commission of the aggravated burglary and intentionally cause injury charge, and you will be sentenced on that basis. Long stopped punching the victim. Before leaving, he threatened him that if he called the police, he would be back to kill him. You then leaned into the doorframe, turned and pointed at the victim and said, "Yeah, if I have to be back here, I'm going to kill you." That constitutes the facts of Charge 3, make threat to kill. You and Long then left the premises.
The victim was assisted by nearby residents who called police and ambulance. He was visibly upset and shaking and crying when spoken to by police. At the time of the offending, you were on bail that was entered on 25 January 2017 for a number of burglary and property-related offences. You therefore committed this offence of aggravated burglary whilst on bail and that constitutes the facts of the related summary charge.
The victim's injuries were described as being swelling and bruising to the face, a wobbly tooth to the left side and lacerations to the interior and exterior of his mouth. A preliminary CT scan revealed no obvious fractures. The victim was asked but declined to make a statement.
Given the circumstances of the offending, I am satisfied that the victim would have been terrified by the actions of both you and Mr Long. This was a non-provoked attack on him at his home and must be condemned, and on behalf of the community I denounce your behaviour.
General and specific deterrence are important sentencing considerations as well as the protection of the community.
I noted that you were arrested on 9 March 2017 and a record of interview was conducted during which you predominantly made a no comment. However you did make some relevant admissions. Ultimately you denied any involvement in the offending.
You were remanded in custody on 9 March 2017 and have remained in custody since that time, and there is 278 days pre-sentence detention.
You entered a plea of guilty at the committal hearing on 12 October 2017. It is accepted that this is an early plea of guilty.
Ms Turfrey on your behalf emphasised a number of mitigating factors and I have taken into account your cooperation with the prosecuting authorities. I note that at the plea hearing, you adopted a statement made on 11 December 2017 and you undertook to assist the prosecution by giving evidence against Ricky Long in accordance with that statement. The prosecutor, Mr O'Doherty, stated that the statement is of significant assistance in the prosecution of Ricky Long.
Pursuant to s.5(2)(AB) of the Sentencing Act1991, the court will be imposing a lesser sentence than it would otherwise have imposed because of your undertaking to assist after sentencing the law enforcement authorities in the prosecution of the offence against Mr Long. That will be recorded in the records of the court and also the fact that the undertaking has been given and its details. You understand that if you fail to fulfil your undertaking, the Director of Public Prosecutions has a right under s.291 of the Criminal Procedure Act2009 to appeal against the less severe sentence imposed.
I have also had regard to the plea of guilty. There is real utility in the plea; it has saved the expense and cost of a trial and inconvenience of a trial and importantly, spared the victim the trauma of having to come to court to give evidence in your trial. I accept that you facilitated justice and your sentence will be discounted accordingly. In the circumstances, I am satisfied it is also indicative of genuine remorse.
I have had regard to your strong family support and positive attitude that was exhibited through both the letter that you have provided to the court, the undertaking that you gave to assist the authorities and also in relation to what is said in the letters that were provided to the court from your mother and your girlfriend.
Your mother, Patricia Bertiel, is now living in Mildura with her partner, your stepfather, and a daughter who has ADHD and developmental delay. They remain very supportive of you and they spoke highly of your role in assisting them with their daughter. They are supporting you to get a fledgling motor mowing gardening business up and running. You have registered the business and have purchased the necessary equipment. Your mother was present in court during the plea hearing.
You have a rather unremarkable background. You were born in Shepparton and moved to Geelong as a young child. At school, there were difficulties associated with you being bullied. You left school aged 17 having completed Year 10. Thereafter you did have a very good work history working as a semi-skilled labourer, production worker and furniture removalist. You also undertook some work in an abattoir and since relocating to Mildura to live closer to your mother, you have had some casual block work and you now want to pursue your own business.
You left your last place of employment in Geelong because of relationship problems. You were previously in a relationship with the mother of your young son, Jordan, who is now aged four. As a consequence of that breakdown, you have not had any contact with your son for two years despite mediation and you are looking forward to renewing your relationship with your child in the future.
Your mother's letter details your strong family connections to the Mildura area and you have extensive supports from both your mother and stepfather and extended family members who have lived in the Mildura area and contributed to the community over many years. She remains supportive of you and will be assisting you in the conduct of your business.
You have formed a new relationship with Ashley Savage since she came to live in Mildura. You provide her with good support and you have helped her with her four-year-old son who has global developmental delay with challenging behavioural problems.
Prior to your remand in custody, you registered the new business, TJS Maintenance and Services, and you are motivated to have a successful business.
I noted that your prior criminal history does reveal problems with drugs over the years. Prior to your remand, you had successfully engaged with a drug and alcohol counsellor, Nicky Callow from SalvoCare, and I have had regard to the contents of her letter of 25 January 2017 in which she says that you responded appropriately to her counselling.
Your time in prison has been particularly onerous. In the past you have been diagnosed with depression. Mr Ian McKinnon, forensic psychologist, in his report dated 24 November 2017 diagnoses you with mixed anxiety and depressed mood disorder, moderate to severe in intensity. It is obvious that since your incarceration, your mental health has deteriorated and you have required additional care and treatment. I accept that the principles outlined in the Verdins case, principles 5 and 6, have been enlivened in that gaol is more difficult for you than a person who is of normal health and that also gaol does have an increased risk of exacerbating your mental illness and I have taken that into account.
I understand since being in gaol, you have had psychiatric treatment in respect to an episode of suicidal ideation, anxiety and depressed mood.
Whilst in gaol, you have been productive. You worked as a baker at the Port Phillip Prison until such time as you had to receive treatment for your psychiatric condition.
I am satisfied having read the contents of the letter that you wrote to the court that you are committed to now changing your lifestyle to be more pro-social and law-abiding, and overall I have formed the conclusion you have very good prospects of rehabilitation.
In sentencing you, Mr Simpson, I have had regard to the particular circumstances. Aggravated burglary is a serious charge and I accept that your offending and your role in this charge is at the low end of the scale of seriousness for this offence. Nonetheless, it is very serious to encourage another to act to enter upon a person's private home to assault, and such behaviour is deserving of stern punishment. People are entitled to feel safe in their own homes and such behaviour needs to be discouraged.
In my view, your involvement in these crimes reveals very poor judgement on your behalf. I am satisfied that you have now properly reflected on your behaviour and accept what you did was wrong.
You are a person who is capable of identifying negative impacts both with respect to substance abuse and poor decision-making, and overall I have come to the conclusion a disposition that facilitates your future rehabilitation is the appropriate one in all the circumstances. You have already spent 278 days in custody which has been a salutary lesson for you and has been real punishment.
In formulating the appropriate disposition, I have had regard to the principles set out in the guideline judgment of Boulton v The Queen[1] and I accept that a Community Correction Order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. In respect to the charges, I will now announce the formal sentence. If you could please stand.
In respect to Charges 1, 2 and 3 on the Indictment, you will be convicted and sentenced to 278 days' imprisonment to follow one year Community Correction Order with conditions that I have already outlined to you, and that is the 100 hours community work over the next 12 months, supervision, assessment and treatment including testing for drug abuse and alcohol abuse, mental health assessment and treatment and you must participate in any programs or courses that address your offending behaviours as directed.
In relation to the summary charge, Charge 8, you will be convicted and sentenced to one month imprisonment which is concurrent.
The effect of that is it is time served to follow a one-year Community Correction Order.
I make the following declaration of pre-sentence detention. I declare that you have served 278 days under the sentence I have imposed this day and direct that that be entered into the record of the courts.
I make the following s.6AAA declaration: but for your plea of guilty, you would have been convicted and sentenced to three years' imprisonment to serve two years' imprisonment. I will direct that a note be entered into the record pursuant to s.5(2)(AB) of the Sentencing Act1991 in relation to the undertaking to assist the authorities after sentencing and will detail the undertaking in accordance with the statement and also a notation will be made that a less severe sentence has been imposed because of that undertaking to assist.
I think that covers everything?
MR O'DOHERTY: It does, Your Honour.
HER HONOUR: Good. All right, so that completes the matter. All we need to do is - Ms Turfrey, if you could ask Mr Simpson to read the document and sign it. We just had to check the address, did we?
MS TURFREY: And Your Honour, I actually have a signed copy here.
HER HONOUR: Signed copy?
MS TURFREY: It was handed to me by your associate.
HER HONOUR: No. You must have photocopied it, did you? All right, but I've just put a line through it, you can fix it. So we'll get that signed.
MS TURFREY: No, that's fine, Your Honour. No, that was just a
HER HONOUR: No, no, that's all right.
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(Community corrections order signed and acknowledged.)