DPP v Stevens [2020] VCC 936

'Before I go to bed every night, I check the doors at least three times. When I wake during the night, which is a normal occurrence, I have to check the doors again.'

'I feel very angry towards this person for putting me through such a trauma. How dare he enter my home?'

1. The male victim of that house wrote that this time has been very stressful,

'To find out that someone had been walking around in our house while we were asleep.'

1. He too is hypervigilant ensuring the doors are locked and checked and

double-checked. They have invested in an expensive security system but he emphasises that his main point of upset is,

'Seeing the result of your actions on my wife. She is still very stressed and has trouble sleeping.'

1. The victim of the second armed robbery also states how difficult it is for her to fall asleep and remain asleep as she is woken by noises that she might hear outside. When that occurs, she checks multiple times a night the security cameras. All this has made the harder for her because her partner is often away from home due to his work. She sleeps with a walking stick nearby for protection and she is constantly checking doors and windows. The expensive security system was purchased to give them some comfort. She is constantly checking the cameras.
2. She was an avid gardener before. She would go outside to pick her vegetables or herbs for the cooking but she no longer does that unless her partner is home. She is too scared to be outside even in her own garden at night. She feels unsafe in her own home and feels unsafe as well in her own car. She gets angry when she thinks of the intruder,

'walking in my house, going through my bag and things and I feel vulnerable because he went through my cards and licence and knows what I look like.'

1. Her partner wrote that he feels that in speaking for him and his wife, he says,

'I feel we have lost something deep and personal. Our own safety and security in our very own home. The immediate aftermath of the breaking I have stressed and a great difficulty sleeping.'

1. He is constantly distracted by the circumstances and has difficulty focusing at work. He does, however, have to travel or did then have to travel frequently for work and was away for many nights and he is worried about his partner who remains at home. Her safety and security is paramount to him and he worries when he is not there.
2. He says,

'This breaking caused a great deal of disruption to my life. It has resulted in sleepless nights, stress about the safety and security and an ongoing concern for me about my daily work and about how safe my partner is when I am away.'

1. The neighbour who came to the assistance of the female victim for the third aggravated burglary, the one that was bitten, he writes that,

'The crime shook the peaceful neighbourhood and the sense of the security and the freedom to go about our activities at any time of the day or night without concern.'

1. He indicates there was stress to him as he had to be tested and await tests in respect of infection and other possible viral diseases as a consequence of being bitten by you. He is worried about his partner and his children and wonders whether it has affected his self-confidence and his sense of ability to defence himself and his family.
2. In assessing the gravity of your crimes, what is clear is that these were brazen invasions of the sanctity of the homes of the victims. In two instances, it was in the dead of night as the victims slept. The third was in the very early morning as the male victim and their young child slept and the female victim was out exercising.
3. Everyone is entitled to feel safe in their home. Your conduct was an attack on that sense of safety and privacy. The trauma and impact on the victims is understandable. This sort of aggravated burglary causes great concern for the whole community as people generally do not feel safe as they should when they come to learn of these types of crimes.
4. It is a deep fear or, as it is sometimes put, everyone's nightmare that while they sleep and are vulnerable, a burglar will break in and invade their privacy and safety. Parents fear for children, partners who must be away fear for the loved ones who remain at home often alone. The community's concerns at this type of crime, the type of crime you committed, will not be overlooked.
5. Indeed, when the offence of aggravated burglary was created by Parliament, the maximum term was fixed at 25 years in contrast against the maximum term for burglary which is 10 years. The Attorney General said when introducing her legislation into Parliament 23 years ago in 1997, she said the following,

'The prevalence of burglary and home invasion style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated.

'Under the Bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of the person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years' imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.'

1. Further, as to the gravity of your offending, in two instances where the time you were in the house and what you got up to could be discerned, it reveals your very troubling behaviour. These aggravated burglaries were not a quick

in-search-steal-type of burglary. Rather, you remained for some time in the first and the third houses accessing the private computers of the victims and in the case of the third house, it has, in my view, been proved to the criminal standard that you used the computer to access pornography.

2. In the circumstances of the third house, you spoke of having a gun and you used violence to escape but I will not double punish you as you fall to be punished for those violent offences separately.
3. For these aggravated burglaries, you were disguised and had gloves. It is to be noted that it was the leaving of fingerprints that was a very important feature in eventually bringing you to justice for your previous crimes in 2007 and the aggravated burglary you committed in 2010. I consider that the equipment you had makes it clear your offending was considered and planned. Your counsel ultimately conceded that this was the case.
4. Your initial response to what happened in the third burglary was disgraceful and revealing of your troubled way of thinking. It was put that the aggravated burglary did not involve breaking in with violence. That is true. But I cannot ignore your intent and methods which involved stealthily getting into a house, then lurking about, accessing computers in two cases and stealing credit cards.
5. This was not about confrontation or violence but it remains serious for what it was; chilling, aggravated burglaries but I add again, cautious of double punishment that when cornered and you thought violence was needed, you were ready and able to display violence. I do note that you were not armed, though you said to the female victim in the third aggravated burglary that you were armed and you would use the weapon.
6. In my view, these are very serious examples of aggravated burglary. Also serious is the level of your moral culpability. You are not to be repunished here for earlier crimes but it is highly relevant that you were found guilty in 2011 by two separate juries of serious crimes. The first set of offences involved you going into a house in your neighbourhood in the middle of the night and indecently assaulting a young female who was asleep in her bed.
7. You were found guilty of three charges of indecent assault and one charge of threat to kill. You were acquitted of the charge of aggravated burglary and you must always receive the benefit and acknowledgment of that acquittal. The police investigating located a fingerprint that was some years later connected to you.
8. Some years later on 14 April 2010, you went into another house where the front door was inadvertently left unlocked. Once in the house, you indecently assaulted a young woman. Again, a fingerprint left nearby linked you to the crime. A jury found you guilty of aggravated burglary in that instance.
9. I was the trial judge in both trials and I imposed a total sentence for all matters of seven years with a minimum term of five years. The sentence for the aggravated burglary was four years. The Court of Appeal affirmed this sentence and rejected your appeal where you argued that the sentence was too severe.
10. The sentence imposed and the appeal itself was before a series of appellate decisions involving aggravated burglary that were before the Court of Appeal in which the Court of Appeal made it clear that sentencing judges were passing inadequate sentences and there needed to be an elevation or increase for sentences for aggravated burglary so as to properly acknowledge the long maximum term of 25 years' imprisonment and the seriousness and the impact of these home invasion type offences, those cases being Hogarth and then on from there Meyers, Maslen, Bowden and Barnes. That is just a few of a long list.
11. Plainly sentences for aggravated burglary have on my assessment increased since you were sentenced in 2011. While many of the other aggravated burglary cases in those appeals are different to yours in that they were confrontational aggravated burglaries or the like and the intent was to assault, there is, as has been made clear, general application that the appellate decisions are not confined to one or other category of aggravated burglary.
12. Just bear with me for a moment.
13. By way of example, just this year in January 2020, the Court of Appeal in Comensoli v The Queen said of aggravated burglaries where the intent was to steal,

'This was, in many respects, the archetypal aggravated burglary. The offender makes a forced entry to premises at night, intending to steal, well aware that there are likely to be persons present. It is the kind of offending which strikes terror into the hearts of members of the community.

'The sentence of 3 years' imprisonment must be regarded as lenient, in our view, given what was said in Hogarth v The Queen and Director of Public Prosecutions v Meyers about the need for increased sentences for aggravated burglary.'

1. The Court of Appeal went on in Comensoli at paragraph 18 to say,

'In this Court, counsel for the applicant (who had also appeared on the plea) submitted that the offence of aggravated burglary was an offence which captured a "continuum" of criminality and acknowledged that the "species" of aggravated burglary involving intent to steal was not inherently less serious than that involving intent to assault or cause damage. He accepted that, depending on the circumstances, entry with an intent to steal could be just as serious.'

1. After referring to the important decisions of Hogarth and Meyers and also to the words of the Attorney General that I have just quoted, the Court of Appeal in Comensoli again reiterated the need for sentences for aggravated burglary in all its forms to properly take account of the long maximum term and are to be considered in terms of Hogarth and Meyers to be elevated.
2. The sentence imposed in Comensoli of three years for the aggravated burglary was described by the Court of Appeal on the appellant's application to be not manifestly excessive but rather to be lenient. In fact, the words were,

'It was a lenient sentence indeed and a substantially higher sentence would have been within range',

1. The fact that you have a clear criminal propensity to invade homes of ordinary members of our community and have been punished by imprisonment makes your moral culpability for these three repeated crimes very high indeed. Obviously, there must be very significant weight attached to deterrence to you and to the protection of the community from you.
2. You have other prior criminal offences both before your previous crimes for which I imposed the sentence of seven years with a minimum of five years' imprisonment and offences since you were released from prison. Your offending history commenced in your late teenage years with a series of violent offences and offences involving weapons. You breached the community-based orders you were placed on. Thereafter, you were convicted and fined for thefts, mostly shop thefts.
3. After your sentence and ultimately release for the sexual offences and the aggravated burglary, you have been back before the Magistrates' Court for breaching a condition of your parole but more concerningly on 26 October 2018, you were convicted of entering a private place without authority or excuse and sentenced to the 195 days' imprisonment being the time that you had served on remand together with you being placed on a 12-month targeted community corrections order which later had a justice plan attached to it as one of the conditions.
4. Thus at the time of these offences, you were about six months out of another gaol term and also aggravating the overall circumstances is that you were on a community corrections order at the time of these crimes.
5. As to your personal circumstances, I have had the benefit of comprehensive expert reports relied on at your trial and plea before me in 2011, together with the further medical legal reports from the psychiatrist, Ms Cidoni, secured in recent times.
6. As my sentencing remarks were affirmed by the Court of Appeal, your counsel and counsel for the prosecution were content that what was there said especially about your intellectual disability had ongoing application to this sentencing task. Thus, I will refer to and repeat relevant parts of what I said in 2011.
7. You are now 34 years old. You were 33 at the time. You have an intellectual disability. Your IQ was assessed by an expert neuropsychologist, Dr Stuart, in 2010 at 65. In recent times, Ms Cidoni has assessed you with an IQ of 60. Also, in recent times when you were released from prison, you were able to secure and have been supported by the National Disability Insurance Scheme, the NDIS.
8. What I said of your intellectual disability in my earlier sentencing remarks still applies. I said the following,

'Dr Stuart assessed that you had a full scale IQ of 65 meaning your intelligence is very low and you fall into the intellectually disabled range. However, Dr Stuart's testing exposed and he explained how your cognitive deficits are uneven across the variety of dimensions. He elaborated in his evidence that you have a very poor capacity to remember things, however, you are much better at conceptualising and understanding things.'

1. As I said in my previous sentencing remarks, I readily accept your intellectual disability is properly to be seen as an impaired mental functioning as that term was described in Verdins v The Queen. Since those sentencing remarks, the High Court in Muldrock has firmly stated that intellectual disability is relevant in sentencing with respect to moral culpability, deterrence and protection of the community.
2. Your intellectual disability is but one factor impacting on those sentencing considerations. You also have significant psychological issues. At the time of my earlier sentencing, I had evidence of your engagement with the Barwon Mental Health Services. A short report from Dr O'Connell said this,

'Mr Stevens has psychiatric and psychological problems of a mixed personality disorder with antisocial narcissistic and borderline features. He also has a mild intellectual disability and a polysubstance abuse. In the past, he has had features of post-traumatic stress disorder due to a history of being a victim of child sexual and emotional abuse.

'All these problems have contributed to behavioural problems including antisocial behaviours, mood instability, poor anger control and difficulty maintaining interpersonal relationships. Mr Stevens has not been able to engage and sustain meaningful or therapeutic relationships with Barwon Mental Health practitioners throughout his episodes of care despite assertive efforts at times by clinicians to achieve that goal.

'In the past, there had been other psychiatric diagnoses suggested such as bipolar disorder or schizophrenia. However, on a long term repeated review over the last five to six years, there has been no consistent evidence via assessments and observations of Mr Stevens' mental state to suggest he has either of these problems versus the collective impact of the problems listed in the above paragraph.'

1. These matters are still relevant notwithstanding your recidivism. So much was made clear by the High Court in Bugmy v The Queen and I accept that those principles apply in your case given the extent of and the enduring impact of your abusive background.
2. In respect to that, the following needs to be understood. Your upbringing saw you subjected to sexual abuse and violence at the hands of your stepfather. Your mother did what she could to provide you with emotional support. The serious sexual abuse of you and siblings by your stepfather resulted in your stepfather receiving a very long sentence of imprisonment being 11 years with a minimum non-parole period of 8.5 years imposed by another County Court judge sitting in Geelong.
3. I have examined those sentencing remarks and note that your victim impact statement stated that you suffered from post-traumatic stress disorder. I did not then and I do not now give mere lip service to the mitigatory aspects of your sexual abuse. You suffered very significantly through your childhood and I have no doubt you have been left with psychological scars as a consequence of your sexual abuse and emotional abuse and deprived upbringing.
4. Its effect upon your capacity to gain an education and social skills is considerable. You attended special schools during the time of your childhood and thereafter have not held jobs for any length of time. There have been times that you have been homeless.
5. All in all, as I said, your intellectual capacity is low and your psychological health is fragile. These matters were made clear again in the report of Ms Cidoni.
6. As I stated in my earlier reasons and I adopt here, your combined intellectual disability and your deep psychological problems mean that there will be some moderation of the ordinarily very considerable weight that would be given to general deterrence. Likewise, the very high moral culpability I spoke of is to some small extent moderated by reason of your impaired mental functionings.
7. Deterrence to you looms large now and the amelioration of that aspect of this sentence is to be taken in the context of the now greater need for you to be deterred.
8. What also needs to be well-understood is that your enduring impaired mental functionings, that is your intellectual disability and your psychological problems, must be seen as requiring consideration and weight to be given to the protection of the community. The ultimate sentence must remain proportionate but within that fundamental proposition. I must balance the ameliorating aspects of your impaired mental functioning with other aspects that give weight to the protection of the community.
9. The denunciation of your frightening conduct together with appropriate weight being given to deterrence to you and to others and protection of the community are the primary sentencing purposes.
10. Your rehabilitation is not overlooked, however, my view now is that your prospects for true reform are grim.
11. Your plea of guilty is very important. It is an acknowledgment of your responsibility for these offences. I have also taken into account your own letter to the victims as another element or expression of remorse.
12. In these difficult times of the COVID-19 pandemic, a plea of guilty is particularly valuable thus your sentence is much less than it would otherwise have been. Gaol is a harsher environment because of the pandemic and I have added that into the equation. So too your time as a prisoner with your impaired mental functioning.
13. The principle of totality is important and I must ensure that the totality of these closely connected but separate crimes is met by a total and proportionate sentence; no more and no less. There needs to be recognition of the separate aggravated burglaries and the separate impact on the various victims.
14. I have considered the offending and all aspects of you as the offender and I have made appropriate orders for cumulation and concurrency and fixed a total sentence and a non-parole period. I have then stepped back to make a final assessment of the overall total sentence and adjusted as appropriate to accord with the principles of totality and parsimony.
15. The minimum non-parole period I fix is what I consider justice requires with respect to imprisonment before being eligible for parole. Your previous parole, the fact that you were on a community corrections order and the fact that you committed further similar serious offences after being imprisoned and released on parole means that the period of potential parole is not as extensive as might be the case for, for instance, a young first offender or an offender with bright prospects for reform.
16. The appellate courts have said many times, there are no fixed formulas between a head sentence and a non-parole period and each case is to be measured on its own unique facts. The overall sentence must be a lengthy one so as to appropriately meet the sentencing purposes and the real gravity of your crimes. Doing the best I can, I impose the following sentences in order.
17. Charge 1, the aggravated burglary, six years' imprisonment.
18. Charge 2, the theft of the credit card and Charge 6, the use of that credit card, an aggregate sentence of two months.
19. Charge 3, the aggravated burglary, six years.
20. Charge 4, the theft of the credit card there, one month.
21. Charge 5, the breach of the prohibition order, four months.
22. Charge 7, the theft of the bike, three months.
23. Charge 6, the aggravated burglary, six years and six months.
24. Charge 9, the common assault, three months.
25. Charge 10, the recklessly causing injury, six months.
26. And, Charge 11, the breach of the prohibition order, four months.
27. I order that two years of Charges 1 and 3 and one month of Charge 9 and two months of Charge 10 be cumulative upon each other and on the base sentence.
28. The base sentence being Charge 8.
29. That gives a total effective sentence, if my calculations are right, of 10 years and nine months and I fix a minimum non-parole period of eight years and four months.
30. You have done 438 days in prison thus far. This figure having been reckoned, I declare that 438 days is part of the sentence that I have just imposed.
31. I will ensure this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have served 438 days of the sentence that I have just imposed.
32. Had you pleaded not guilty to these offences and then found guilty of them, I would have imposed a sentence of 12 years and 10 months with a non-parole period of 10 years and six months.
33. Are there any other orders required?
34. There is an order relating to disposal and that will be made.
35. Do the mathematics add up, Mr Singh and Mr McGlone?
36. MR SINGH: It does, Your Honour, with respect.
37. MR McGLONE: It appears to.
38. HIS HONOUR: It does?
39. MR SINGH: Yes.
40. HIS HONOUR: Thank you. There is nothing further?
41. MR SINGH: Nothing further, Your Honour.
42. HIS HONOUR: Thank you. I am grateful for your assistance, Mr McGlone. I will leave the Bench. Mr McIntosh will work with you and the others who are on the screens and listening to this sentence. They will leave and you will be given a short time to talk to your client if you want to and he wants to. Thank you.
43. MR McGLONE: Thank you, Your Honour.