DPP v Temple [2021] VCC 2118

3 The full circumstances of your offending are set out in the Summary of Prosecution Opening for Trial dated 2 February 2021 (tendered as exhibit A on the plea). However, in shorter compass, the victim in this matter and her husband own a property in Queenscliff which has a house on it, and a separate self-contained studio bungalow situated at the rear.

4 On the evening of 23 December 2019, the victim and her husband were home and asleep in bed in the main house. The doors to both the bungalow and the main house were unlocked. You attended at the property and entered the bungalow. Whilst in the bungalow you had a shower and washed your hair. At some later point you then entered the main house.

5 After being in the house for an unknown amount of time, you approached the door of the main bedroom. By this point it was approximately 5.20am. The victim was sleeping, naked, under a sheet and doona in the position closest to the door. You entered the bedroom intending to assault the victim (charge 1 - aggravated burglary). You then went over to the victim, who was still sleeping, reached under the sheet and doona, and touched her naked bottom area between her legs (charge 2 - sexual assault).

6 As the victim turned and opened her eyes you ran out of the bedroom door. The victim's husband then woke up. You returned to the bedroom door and the victim screamed out "I thought there was someone here'. You remained standing at the door for a few seconds and then ran down the hallway and left the house via the sliding glass rear door.

7 At 5:32am the victim rang 000 and gave a description of you to police. You were located by police a short time later riding a bicycle less than 500m from the victim's home. You were arrested and given your caution and rights. You were also searched and police located a small deal bag containing methylamphetamine in your pants pocket (charge 3 - possess drug of dependence), and a small bag containing 0.1g of cannabis in your backpack (charge 4 - possess drug of dependence).

8 Upon being taken to the police station, you were assessed by a forensic medical officer to be unfit for interview. You were then remanded and remained in custody until 12 November 2020 when you were granted bail. As a result you have served 326 days of pre-sentence detention.

9 I received a victim impact statement in this matter and it is clear from that statement that your actions have had a significant impact on the victim. Prior to you entering her bedroom on that evening, the victim was never afraid of being home alone. However, now, as a result of your conduct, the victim has not been able to stay at home alone. She and her husband have had three extra gates with locks installed at the property, and have completely covered in the carport and the woodshed. Every night before going to bed, they check that all of the gates, doors and windows are locked and ensure that all of the blinds are pulled down as soon as it gets dark outside. In addition to these measures, the victim sleeps with a golf club beside her bed and has a baseball bat also handy behind the office door. It is apparent that your actions have taken away the victim's sense of safety and security in her own home - the place where she is most entitled to feel safe. I have taken this considerable victim impact into account in sentencing you on these offences.

10 You have a very limited and dated prior criminal history. On 31 August 2005, when you were 19 years of age you were sentenced for one charge of burglary and two charges of theft and received a without conviction adjourned undertaking for a period of 12 months with a requirement to pay $300 to the Court Fund. You received a further 6 month adjourned undertaking without conviction on 13 April 2008 when you were 21 years of age for one charge of assault police. That undertaking also contained a requirement to make a $400 payment to the court fund. You complied with both undertakings. Aside from these two matters, there has been no other offending either prior, or subsequent, to this offending.

11 This matter has a relatively lengthy history - with you being charged on 23 December 2019; committed to stand trial (after a contested committal hearing) on 12 November 2020, and finally entering a plea of guilty - after a number of case conferences and a sentence indication before me - on 6 December 2021. Despite this, your plea still facilitates the course of justice, saves the victim from having to give further evidence in this matter, and has significant utilitarian value. I also accept that your plea of guilty is reflective of your acceptance of responsibility for your conduct, especially in light of your lack of memory in respect of the period prior to, during and immediately after the offending. Finally I note that your plea carries greater weight in the sentencing synthesis by reason of the pandemic and it's impact on the efficient running of the criminal justice system.

12 In the circumstances, I have given you a significant discount on sentence for your pleas of guilty.

13 Ms Cannon on your behalf submitted that whilst serious, your offending in respect of both the aggravated burglary and the sexual assault are at the lower end of the scale of seriousness for such offences. In particular, Ms Cannon submitted that I should take into account that your initial entry into the victim's property was purely for the purpose of using the amenities and that the sexual assault consisted of a fleeting touching.

14 Ms Guesdon by contrast disputed that your offending falls at the lower end of the spectrum. She submitted that your behaviour on this occasion is every woman's worst nightmare. You entered the victim's bedroom, while she was sleeping, and touched her in an intimate area. This, Ms Guesdon submitted, is serious offending.

15 Both Ms Guesdon and Ms Cannon are correct - aggravated burglary and sexual assault are both serious offences no matter how they are committed. This incident however was a somewhat unusual instance of aggravated burglary.

16 I am not sentencing you on the basis of you entering the property, or even for that matter the main house, with the intention of assaulting anybody. It is clear that your original purpose in entering the property, the bungalow and the main house was to see to your own personal needs. You fall to be sentenced on the aggravated burglary on the basis that your intent to assault formed at some point after your entry into the house and before your entry into the bedroom. In that sense, your offences whilst in the house could only be described as opportunistic. This was not a confrontational aggravated burglary. There was no pre-planning. You did not have a weapon. You made no attempt to disguise yourself or to minimise the fact of your presence in the home. There is effectively an absence of many of the aggravating features which might ordinarily characterise an aggravated burglary at the higher end of the sentencing spectrum.

17 Insofar as the sexual assault is concerned, Ms Cannon is correct when she says that the assault consisted of a fleeting touch. However it did occur whilst the victim was asleep, naked and vulnerable - and this does aggravate the offence.

18 You are now 35 years of age. You were born and raised in Geelong. Your mother died in a car accident when you were 9 years of age and your father has subsequently remarried. You have one older brother, three younger half-siblings and a stepsister.

19 You went to primary school in Queenscliff, and then attended a Catholic regional secondary college. You have suffered with social anxiety from a young age and this manifested itself in you being particularly shy throughout school. You had very few close friends and preferred to keep to yourself. You did however play sport to try and combat your anxiety.

20 On 24 February 2004 - just after starting Year 11 - you suffered a head injury whilst playing basketball at school. This resulted in you having an acquired brain injury and caused you to develop seizures which you continued to be treated for up until your arrest on these offences. It also impacted upon your concentration and you struggled to complete your schoolwork. Despite these difficulties, you still managed to finish your Year 12 studies.

21 After leaving school you worked in a variety of jobs. You initially worked in a bowling club. You then commenced a steel fabrication apprenticeship for which you completed all of the practical aspects but did not manage to complete the coursework. You did however work in the steel fabrication industry for approximately 6 years.

22 Over the past 10 years, you have not been able to work largely due to your anxiety issues - and I was told that you effectively withdrew from society. Your only income during that period was by way of Centrelink benefits.

23 As well as having a history of mental health issues, you have a history of drug use behaviour. You commenced using cannabis in your teens, and continued to use cannabis episodically in limited quantities right up until the offending subject of this sentence. You then commenced using methamphetamine in your twenties, again episodically and in limited quantities. You have also used ecstasy and heroin on a few occasions when you were in your teens.

24 At the time of the offending you were unemployed, homeless, had been using both cannabis and methamphetamine, and were suffering from what was later diagnosed as drug-induced psychosis. You have no memory of events prior to finding yourself in custody at the Melbourne Assessment Prison.

25 I received a number of reports and documents regarding your mental health on the plea including a letter from your GP clinic dated 1 April 2020, two psychological reports authored by Dr Deacon dated 21 May 2020 and 26 November 2021 respectively, as well as notes from Barwon Health, Justice Health and the Metropolitan Remand Centre.

26 Your GP - Dr Geoff Allen - reported that you had been seen at the Point Lonsdale Medical Group Clinic over many years. Dr Allen advised that your symptoms have varied over the years but that your presentation tends to revolve either around depressive episodes with decreased mood, insomnia and social isolation; or, alternatively, epileptic convulsions. He stated that you have, on many occasions, used illicit drugs to self-treat your medical conditions and that this has complicated management of your symptoms. You have been treated with clonazepam in the past to help control your seizures and also to help you with your marked social anxiety.

27 The Barwon Health records confirmed that you suffered an acquired brain injury in the aftermath of your basketball accident when you were 17 years of age which resulted in change in mood, concentration, learning ability and ability to regulate behaviour. They also show you being hospitalised on two occasions in August and September 2019 in circumstances where you were in a state of drug-induced delirium.

28 A combination of the Justice Health and Metropolitan Remand Centre records, and Dr Deacon's second report show that you were diagnosed with a psychotic disorder in early January 2020 after being remanded at the Melbourne Assessment Prison. At that time it was unclear whether your psychotic presentation represented a drug-induced state or an enduring psychotic disorder. You spent an extended period of time in the Acute Assessment Unit whilst on remand, and were also involved in ongoing psychiatric and psychological intervention whilst you were in custody. Nearing your release from prison in November 2020 your diagnosis was determined to be a drug-induced psychosis.

29 In Dr Deacon's opinion, having regard to all of the available material, it is reasonable to assume that you were in the grips of a methamphetamine-induced psychosis at the time of committing the offences in this case. In his view your psychotic state likely contributed to your peculiar and disinhibited behaviour on the night, and compromised your capacity to exercise reasonable judgment.

30 Dr Deacon identified that you had a particularly difficult time whilst in custody. In his opinion, you were (and would continue to be in the future) a vulnerable man in custody given your marked anxiety condition. During your period on remand you were also recovering from a psychotic illness for a sustained period which further compounded your mental vulnerabilities. Overall, in his opinion, your underlying ABI and anxiety disorder, combined with a clear vulnerability to psychosis, contributes to you being a vulnerable prisoner who is at risk of decline when in a prison environment. However, in Dr Deacon's opinion you are also someone who - because of your anxiety-related issues - also faces difficulties in the community.

31 Dr Deacon noted that since you have been released from custody you have not suffered from any further episodes of psychosis but you remain significantly impacted by anxiety to the extent that you fear leaving your residence. In Dr Deacon's view you do not necessarily warrant engagement with the local mental health service given that you are not psychotic, but given your high level of anxiety and your cognitive impairment, you would warrant assistance with services through the National Disability Insurance Scheme ('NDIS'). Dr Deacon further identified that you require ongoing drug counselling, and that your risk of offending will be significantly mitigated if you abstain from methamphetamine and maintain any cannabis use at low levels.

32 Ms Cannon on your behalf submitted that I should take into account in your favour that the time you have already spent in custody was more difficult than it would have been for someone without your conditions, and that there is a serious risk that if you were returned to prison, it would have a significant adverse effect on your mental health. Ms Guesdon conceded that it would be appropriate for the court to take both of these factors into account in mitigation of sentence, and I intend to do so.

33 I accept Dr Deacon's opinion that you are a vulnerable prisoner who is at risk of mental decline in the prison environment. Further it is clear on the evidence before the court that you had considerable difficulties whilst in custody on remand. As I identified earlier, you spent 326 days in custody after your arrest, with over half of those days being during the pandemic. The combination of the impact of your social anxiety, your mental health issues and the pandemic meant that you did not have any contact - either in person or via remote means - with family members whilst you were in custody, and spent your time whilst in custody almost exclusively in your cell, and under psychiatric care. There is no doubt that these issues caused your time in custody to be more onerous than it would have otherwise been.

Sentencing Submissions, Prospects of Rehabilitation and Sentencing Purposes

34 Turning now to the sentencing submissions of the parties. Ms Guesdon, for the prosecution, submitted on the sentence indication that given the seriousness of the offences and notwithstanding the mitigating matters, a head sentence with a non-parole period would be an appropriate disposition in this case.

35 Ms Cannon, by contrast, submitted that given your plea of guilty, ongoing compliance with bail, compliance with services since being released into the community, improved prospects of rehabilitation, lack of further offending, period on remand, and the impact of your mental health issues, a term of imprisonment no longer than that already served, combined with a community correction order, would be an appropriate sentence.

36 You have remained offence free since your release on bail, and have been compliant with your bail conditions - which initially included a condition that you engage with the Court Integrated Services Program. You are linked in with the Homeless to Home housing program and have a case worker who you have contact with on a fortnightly basis. You have been stable in your accommodation at the Aberdeen Motel, and are working towards moving into a caravan. You are also in the process of applying for support through the NDIS. Over the past month you have also been making a conscious effort to try and go out more, rather than remaining in your room. As part of this effort, you now attend a nearby church each morning for breakfast, and you have started to reconnect with family members, including your father. You have no immediate plans to re-engage with work, but would like to look for work as a steel fabricator in the future.

37 It is apparent from a combination of your criminal record and the report of Dr Deacon, that your offending on this occasion was out of character and linked to the drug-induced psychosis under which you were operating at the time. Whilst this does not mitigate your offending in any way, it is relevant to sentencing in that your risk of re-offending is firmly interlinked with your abuse of illicit drugs - which in turn appears from the medical material to arise from time to time as a mode of self-medication. If your mental health remains stable and you remain drug-free, then you are also likely to remain offence-free. Ultimately, protection of the community in this case is going to be best effected by you engaging in rehabilitative programs which address both your mental health and your drug issues. Given your very limited criminal history, the context in which this offending occurred, and the manner in which you have conducted yourself to date whilst on bail, I am of the view that you do have reasonably good prospects of rehabilitation, if you have appropriate supports in place.

38 I agree with Ms Guesdon that any sentence imposed in this case must reflect the gravity of your offending, and weight must be given to the sentencing purposes of deterrence - both general and specific, denunciation and just punishment. However in my view, this is an appropriate case for weight also to be given to rehabilitation - and by extension community protection - as a result of your limited prior history and the need for treatment of your underlying issues. Having regard to the principles of totality and parsimony, I am of the view that each of these sentencing purposes can be adequately addressed through a sentence which combines a term of imprisonment roughly equivalent to the time which you have already served in custody on remand, and a community correction order. I have accordingly had you assessed for a community correction order and you have been assessed as suitable. The assessor has recommended that I impose a supervision condition on the order together with conditions requiring you to undertake assessment and treatment in respect of drug, alcohol and mental health issues, and programs to reduce re-offending. I am of the view that the recommended conditions are appropriate in this case.

39 So, Mr Temple, you will be sentenced as follows.

40 On Charge 1, aggravated burglary, you are convicted and sentenced to seven months' imprisonment and that is the base sentence.

41 On Charge 2, sexual assault, you are convicted and sentenced six months' imprisonment. Three months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1, therefore the total effective term of imprisonment is 10 months' imprisonment.

42 Additionally on Charge 1 and also on Charge 3, possess a drug of dependence, you are convicted and placed on a community correction order for a period of 18 months, assuming that you consent to such an order.

43 That order will contain a number of mandatory conditions including the following:

(i) you must not commit another offence for which you could be imprisoned during the time that the order is in force;

(ii) you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

(iii) you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

(iv) you must report to Geelong Community Corrections Centre before 4pm within two clear working days of today; I understand in this case it would be by phone as an initial contact and then they will direct you what you need to do from there. The phone number will be provided to you on the order.

(v) you must let community corrections know within two clear working days of you changing your address or job;

(vi) you must not leave Victoria without first getting permission to do so from the Secretary (or delegate); finally

(vii) you must obey all lawful instructions from and directions of the Secretary.

44 The conditions that apply in addition to the mandatory conditions are:

(a) you must be under the supervision of a Community Corrections officer for a period of 18 months;

(b) you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager;

(c) you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the Regional Manager;

(d) you must undergo assessment and treatment for mental health issues as directed by the Regional Manager, and

(e) you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager.

45 So basically you have to comply with supervision. You will have a case worker who you have to check in with regularly. You will have to be assessed and, if told that you need to be treated, undertake assessment and treatment for drug use. You will need to be assessed to see what your alcohol use is like. If you have to od treatment then you will need to do the treatment; it may just end up being an assessment in terms of alcohol. You have to undergo assessment and treatment in relation to your mental health issues and you have to be assessed to see if you are suitable for any programs. If you are then you undergo those programs.

46 Do you understand all of those conditions? I think you may be on mute, Mr Temple. I can't hear you.

47 OFFENDER: Um, with the 18 months, um, CCO, is - does that, like - does that count the year that I've been out on bail or does - - -

48 HER HONOUR: No, the 18 months starts from today and what happens is that what you need to do will be spread over that period of time. But say you get through all of the treatment and they think you don't need any more treatment, you may be finished your treatment, say, in nine months or 12 months and things will ease off in relation to the 18 months. But the overall conditions will be in place for 18 months. You'll have to stay offence free for 18 months and you 'll need to keep doing things as long as Corrections ask you to do them within that 18-month period. Does that make sense?

50 HER HONOUR: Yes, all right. Because some of the things will take a long time for you to get assessed and then potentially placed into.

52 HER HONOUR: So some of the things may not come into being for four or five months, for example.

53 OFFENDER: 'Cause, um, like, I've seen psychologists and stuff in the past and they've pretty much just, like, not given up on me but just said, like, 'Look, if you have any real troubles, like, with - like, committing suicide or anything, come back'. But they've pretty much always given up on medications and that 'cause they - there are so many communications on medication and I just have to keep upping them and upping them until they can't do anything. And I can - they're like, 'Just, like, pretty much do what you want but not, like, in a bad way'. But, um - - -

54 HER HONOUR: So, Mr Temple, all of that will be discussed when you are working with Corrections as to what's going to be of assistance to you and what's not. So they'll work through all of that with you and that's the whole point of having a supervisor, a case worker, dealing with you. Then as I said earlier to your lawyers, if you also end up on the NDIS then your worker from the NDIS will actually also help you through and liaise with Corrections as well and make sure that whatever you're asked to do works best for you and is something that helps you and doesn't make things worse for you.

58 HER HONOUR: Yes, all right. So I have got to tell you if you do not comply with the requirements of the order, so that is if you do not do what you are asked to do or if you commit a further offence punishable by imprisonment during the period of the order then you are likely to be breached on your order by Corrections and the matter comes back before me. I then need to then hear what has happened and consider that.

59 One of the things that can happen if it is a significant breach is that you may fall to be resentenced on the charges and you may face a further term of imprisonment. It would depend what the situation was, but do you understand that, that that is a potential outcome if you do breach the order? Yes, all right. Given all that that I have told you, and given the conditions which apply, do you agree to undertake the community corrections order?

61 HER HONOUR: All right, thank you. There is one final charge I have not announced sentence on yet, so I better do that.

62 On Charge 4, possess drug of dependence, you are convicted and discharged. So that was the cannabis, 0.1 grams.

63 Pre‑sentence detention, pursuant to s18 oi the Sentencing Act 1991 I declare that the period of 326 days is to be reckoned as a period of time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court. So what that basically means is you have already done the term of imprisonment. You do not have worry about that, that is already out of the way. You have only got to worry about the community corrections order, all right?

Section 6AAA Declaration

65 HER HONOUR: All right. Finally, pursuant to s6AAA of the Sentencing Act, in indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and then convicted of them you would have been sentenced to a total term of imprisonment of two years and six months with a non-parole period of one year and six months. So you have saved quite a significant amount of time in custody by reason of your plea of guilty in this matter, all right? All right. Ms Cannon, you can obviously explain that a little bit more afterwards as well.

67 HER HONOUR: I note that there were no ancillary orders sought. Ms Guesdon, that's correct, isn't it?

69 HER HONOUR: All right. Counsel, are there any matters which either of you wish to raise at this stage in respect of the sentence or the reasons for sentence?

71 HER HONOUR: No, all right. So what will happen, Mr Temple, is that we have got a recording of you agreeing to the community corrections order. I am just going to triple-check, because I never get this right, whether you need to sign it given the COVID aspects. All right, so we will note on the order that you have given a verbal consent. We do not have to bother you with having to sign it and get it back to us, but what we will do is that we will make sure that a copy of the order comes through to Ms Foley fairly quickly so that she can give you a copy of that order before you leave her today.

72 That will have on it the list of conditions that I have just read out to you and it will also have the contact number for Corrections that you will need to call to do that first report, which you need to do by Tuesday, 4 pm, given that today is Friday, all right? All right, I can see you nodding. All right.

73 Can I thank everybody for their assistance and for making yourselves available on the very last day of court. I do appreciate the assistance that you have both given me, and Ms Foley as well, throughout this entire proceeding, which has obviously now been going on for some months. You have both been incredibly helpful and Ms Foley has also been very helpful as well. Can I wish you all the best for Christmas and, Mr Temple, wish you the best for the future.