R v Baker [2020] VCC 935

1. Samuel Baker, you have pleaded guilty to one count of aggravated burglary[1] and one count of causing injury intentionally.[2] Maximum penalties are respectively 25 years and 10 years' imprisonment.
2. The circumstances of the offending were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference.
3. The complainant in this matter was not known to you and lived in the same town of Dimboola.
4. You had been told that morning by your partner and the mother of your two children that she wished to have a trial separation. You attended the annual show on the 19th of October 2019, and you had been drinking alcohol. After the show concluded you went with a friend to the local hotel and continued drinking. Around 10 pm you were walking home with your friend and went past the complainant's home. Your friend describes you at the time as being highly intoxicated. You told your friend that you intended to detour past the home of the complainant to find out what the problem was. You told your friend that the occupants of the house had attempted to run over your younger stepsister when she was riding an electric scooter.
5. You knocked loudly on the door and it was answered by the complainant, a woman aged 41. You asked her whether her name was Julie Burns. She advised that her name was Julie Byrne. You demanded to speak to her partner and she replied that she did not have a partner. You then threatened her and accused her of seeking to run over your stepsister. When she denied this and queried the matter you sought to grab her by the throat and shook her. She was in a state of shock and asked you to leave . She slammed the door and fixed the latch chain . She told her 14 year old daughter to contact the police. You then burst through the door, breaking the latch chain and preceded to punch her three times to the head. Your friend intervened and said that, 'We don't hit women'. He remained at the property to render assistance. You then proceeded to walk to the local police station. The police were not present as they had responded to a 000 call, presumably from the 14 year old daughter of the victim. When the police did arrive you advised them that you had done something stupid and you never wished it to happen again.
6. Subsequently you were conveyed to the Horsham police station where originally you were unfit to be interviewed. You were later interviewed and admitted the event but claimed that some of the details you could not recall.
7. As a result of your assault on the complainant she sustained a black eye, a broken nose, requiring surgery, and broken teeth.

1. The complainant filed a victim impact statement indicating that she no longer feels safe in her own home.[3] She has had to have surgery for her nose and extensive dental work. The offending has had a major financial impact in that she was operating Family Day Care and this has impacted on her ability to reassure her clients that she can provide a safe environment. She has had to attend numerous appointments to address the consequences of your offending and is worried about her ability to continue as a single parent. Her older daughter has filed a victim impact statement indicating that while she was not present, your invasion of the home affected her ability to concentrate for her VCE, and in a small town it is also affected her employment.[4]
2. Her younger sister, who was present in the house, also filed a victim impact statement, indicating that she did not feel safe, has flashbacks and does not sleep very well. She has also ceased some social activities.[5]
3. Overall, from the victim impact statements, your offending has had a major impact on the complainant and her immediate family and this goes to the overall seriousness of the offending.

Seriousness of the Offending and Moral Culpability

1. It is not in dispute that this was serious offending. To burst into a woman's home, intoxicated, at night, and then assault her for no real reason was outrageous conduct. Aggravating the conduct was the fact that you were intoxicated, and that her young daughter was present in the house. Also relevant to assessing the seriousness of the offending is the impact of the offending on the complainant and her family.
2. As submitted by the learned Crown Prosecutor, this was a confrontational aggravated burglary, followed by an assault on a vulnerable woman in her own home. While it may not have been premeditated, it was alcohol fuelled violence against a woman.

1. The context in which the offending occurred was outlined on the plea. You have had longstanding problems with depression and anxiety. In the period prior to this event you had been on a medication. Your local doctor had shortly prior to this increased the dose of the medication and you must be taken to be aware that it is not to be combined with alcohol, as it is labelled that way. The doctor confirmed that she has found that the effect of alcohol seems to be magnified many times with your particular prescribed medication.
2. On that particular day the stress of being advised by your then partner of a trial separation and, as you told the police, taking the increased dose of medication for the first time, was a potent combination leading to intoxication and disinhibition.
3. While the combination of medication and alcohol explain your offending, it cannot provide any justification for it, nor lessen than your moral culpability.

1. I turn now to matters subjective to you. Your Counsel, in a comprehensive plea, put a number of matters in mitigation which I take into account.[6]
2. First, you come before the court without any prior criminal history. This is very significant given your age of 28.
3. You have pleaded guilty. The plea was an early plea. The plea is significant as it obviated the need for any witnesses and a committal. In the current environment that is significant and I give you credit for it. Your plea is also some evidence of remorse and insight, and that is confirmed in the references tendered.
4. Next, you were brought up in the Dimboola area. Your parents separated when you were 11. You remained with your mother who re-partnered a couple of years later. You have the full support of your parents and family. You have a younger sister, a half-brother, and a half-sister.
5. You were educated in Horsham and left school at age 15 and obtained an apprenticeship as a panel beater, studying for that in Geelong..
6. Subsequently you worked in that occupation and also did some fly in, fly out work in the mining sector. From about 2012 you commenced as a welder with a local manufacturer, and since 2015 you have worked for a local business as a welder.
7. You have been in a relationship for a period of three years prior to this event and have two children aged three and one. You are currently sharing the parenting of those children with your former partner. You are also paying child support.
8. I was provided with a number of impressive references from members of your local community, including your current employer, who is prepared to continue your employment.[7]
9. Those references indicate you have a very good reputation in the area and this event is seen as very much out of character. You have no history of violence or antisocial behaviour.
10. I was also provided with a certificate from the Salvation Army, Horsham, which indicates that you have completed the positive lifestyle program and you are now equipped to address issues of anger and stress that underlay this offending.[8]
11. Also in evidence was a letter from an anxiety management counsellor, who indicates that you have made progress in addressing issues in your life and to develop resilience and a focus on your children.

1. Before me was a report from a local general practitioner, who has been treating you for depression, anxiety and panic attacks since 2015 and noted that you have had these conditions for many years. She confirms the increase in medication and notes your failure to comply with advice as to careful use of alcohol with the medication. You had been engaging in binge drinking prior to this event.[9]
2. She notes that you face less contact with your children as a result of the separation with your then partner. She noted that you were attempting to address your anxiety although you had declined counselling.
3. She notes that when your anxiety and depression are under control you do not engage in binge drinking. Since the offence she indicates that your drinking has reduced.
4. Also in evidence was a report from Dr Cunningham, a psychologist. He opines that you do not have a mental illness.[10] Significantly, his view is that you are at low risk of violent reoffending. In his view your offence indicates poor judgement in the context of a convergence of risk factors, including the ending of your relationship, abuse of alcohol and modification of your medication, and information as to the attempt to run your sister-sister off the road. You did not have, in his view, good insight into why your behaviour escalated into violence but you are aware of the wrongfulness of your actions. He is of the view that you would be assisted by psychological intervention to build resilience and distress tolerance. You would also benefit, in his view, from maintaining employment, stable accommodation and family support.

1. Your lack of prior convictions and the family support, your good employment record and your insight into your offending, indicate that you have very good prospects of rehabilitation. It is clearly in the interests of the community that you be rehabilitated into the community and resume your role as a father to the two children and as a taxpaying member of society.

1. The learned Crown Prosecutor in his submission, noted that this was a violent, confrontational, aggravated burglary with a significant impact on the complainant. It called for a significant sentence. He submitted that a combination sentence was out of range. For current sentencing practices he referred to the cases of Kerapa[11] and Shaw.[12]
2. Your Counsel, on the other hand, submitted that a combination sentence was appropriate. He referred to a number of cases where, in this court, combination sentences had been imposed.[13]
3. He also referred to the relevant sentencing statistics. Both sentencing statistics and current sentencing practices are only two matters to take into account. There are different features in all of the cases that he referred to, but they do provide something of the yardstick from which to consider a particular sentence. A particular past sentence is not a precedent.
4. Your Counsel emphasised your family support, your employment, and the out of character nature of the offending, and the actions that you have taken since the offending.
5. He sought the exercise of leniency in the context of your very good prospects of rehabilitation, your early plea of guilty, and the actions you have taken since the offending, namely, participation in the Salvation Army program and engagement with a counsellor for anger management intervention.
6. Your Counsel also emphasised the burden of imprisonment given the current pandemic.
7. In your case there will be a significant burden of a sentence of imprisonment with the risk of infection, an initial intake period of isolation, the restriction on activities and movement, restrictions on visitors, and the general tension associated with the current pandemic environment. An additional factor in your case will be your continued isolation, even when normal visits are restored, from your family, children and social contacts, located in the western Wimmera district.
8. While I accept that the prison authorities are doing everything they can to ameliorate difficult conditions in the current environment, the impact of the pandemic on prisoners is a matter to be taken into account, along with all other sentencing considerations.

1. The prosecution in this case has sought as an aspect of your sentence, the imposition of an alcohol exclusion order under section 89DE of the Sentencing Act. This is a relatively new sentencing option, designed to impose an additional restriction on those found guilty of alcohol fuelled violence offences.
2. The jurisdiction, to make such an order under this Act, arises where there is a finding that at the time of the offences you were intoxicated and your intoxication significantly contributed to the commission of the offences. Your counsel did not dispute that such a finding was available and I make that finding.
3. You will be excluded from licensed premises for a period of two years from your release from prison. This is a significant additional punishment on you, particularly given that you are from a small country community with limited recreational outlets. I have taken it into account as part of your overall sentence and I am satisfied that it will be a significant factor in deterring you from future criminal conduct and in protecting the community.

1. The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any.
2. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into the community. I must seek to apply the principle of leniency and parsimony, and imprisonment is to be a sanction of last resort.
3. In this case considerations of general deterrence and denunciation are very significant. A signal must be sent to the community that women are entitled to the protection of the courts in their own homes. No one is entitled to take the law into their own hands over some perceived grievance and to burst into people's houses at night. Those on medication must comply with directions regarding consumption of alcohol. Your conduct in bursting into the home of the complainant in an intoxicated state and then proceeding to assault her in the presence of her young daughter, must be absolutely denounced.
4. A countervailing or incommensurable consideration is the interest of the community in your resumption of a law-abiding life, particularly in circumstances where you have no prior convictions, this was out of character conduct, you have stable employment, and you are taking some responsibility for two young children, including the payment of child support, and also addressing your alcohol consumption.
5. This offending occurred as a single course of conduct with the offences having a common temporal and factual basis, and in those circumstances, as set out in the case of Kerapa, referred to me by Mr McConaghy, an aggregate sentence is appropriate to capture in a proportionate manner the totality of your offending conduct.
6. I have closely weighed all the matters put on your behalf, but on a fine balance regard your offending as too serious to call for a combination sentence. Such a sentence would not serve all the requirements of general deterrence denunciation and just punishment.
7. Your good prospects of rehabilitation, the existence of an alcohol exclusion order, and considerations of parsimony in the current environment, are such that I regard it as appropriate to impose a longer than usual period during which you will be eligible for parole.
8. Could you please stand?

1. The sentence of the Court is as follows. On the two counts you are sentenced to an aggregate term of imprisonment of two years and three months. I direct that you serve 14 months' imprisonment before being eligible for parole.
2. I impose an Alcohol Exclusion Order for two years. This order commences upon your release from prison. Contravention of the order is an offence punishable by imprisonment. I must advise you that you have the ability to apply to vary that order before a Magistrate should you have good reason to be on licenced premises, such as a need to attend for work or attend a specific function such as a wedding.
3. I declare that pursuant to section 6AAA, if you had not have pleaded guilty I would have imposed a head sentence of three years' imprisonment and a non-parole period of two years. [14]
4. I declare you have served 21 days' PSD, excluding today.
5. Are the any other matters, Mr McConaghy?
6. MR McCONAGHY: No, Your Honour.
7. HIS HONOUR: Mr Henwood?
8. MR HENWOOD: No, sir.
9. HIS HONOUR: All right, Mr Baker, I hope you can put this matter behind you but, as I indicated in my sentencing remarks, the community will not tolerate this conduct and it calls for sentences of imprisonment and that is what I have imposed. I remind you about the Alcohol Exclusion Order. I do not want you back in this Court or in the Magistrates' Court, for breaching that order. I hope, when you are able to obtain parole, you can put all this behind you and go back to a law abiding life, comply with your medication, and not drink when you are on medication. I hope you get back to earning a quid, pay child support and be involved in the lives of those two children.
10. I want to thank you, Mr Henwood, for your assistance, and your instructing solicitor and the family who I think are on the screen somewhere, and also Mr McConaghy and his instructing solicitor, and I will adjourn the Court temporarily.

[1] Contrary to s 77 of the Crimes Act 1958.

[2] Contrary to s 18 of the Crimes Act 1958.

[6] Defence Submissions: Exhibit 1 on the plea.

[11] Kerapa v The Queen [2017] VSCA 56

[12] Shaw v The Queen [2012] VSCA 78

[13] Defence Counsel in the course of their submissions invited the Court to consider the following cases: Director of Public Prosecutions v Singh [2016] VCC 1198, Director of Public Prosecutions v Hartley [2017] 690, Director of Public Prosecutions v Simpson [2017] VCC 1947, Director of Public Prosecutions v Eldridge [2016] VCC 784, Director of Public Prosecutions v Long [2018] VCC 84, Director of Public Prosecutions v Mundell [2018] VCC 1143, Romero v The Queen [2011] VSCA 45

[14] Sentencing Act 1991