DPP v Goodfellow [2019] VCC 1600 (26 September 2019)

Last Updated: 13 November 2019

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION

Revised Not Restricted Suitable for Publication

CR-17-02042

DIRECTOR OF PUBLIC PROSECUTIONS
v
JAMES GOODFELLOW

---

JUDGE:	His Honour Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019, 10 April 2019, 7 August 2019, 4 September 2019, 18 September 2019.
DATE OF SENTENCE:	26 September 2019
CASE MAY BE CITED AS:	DPP v Goodfellow
MEDIUM NEUTRAL CITATION:	[2019] VCC 1600

REASONS FOR SENTENCE

---

Catchwords: CRIMINAL LAW – Sentencing – aggravated home invasion and theft – guilty verdict following trial – extensive history of drug use - Bugmy principles applied – lengthy criminal history – s10A mandatory minimum – significant reasons exist – finding academic – Verdins applied – immediate term of imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Goding	Office of Public Prosecutions
For the Accused	Ms M. Casey	Greg Thomas Barristers and Solicitors

HIS HONOUR:

1. James Goodfellow, after a nine-day trial, you were convicted by a jury of aggravated home invasion and theft. The maximum penalty for aggravated home invasion is 25 years' imprisonment; the maximum penalty for theft is 10 years' imprisonment.
2. The facts of the home invasion in brief terms are that at around 3 am on 21 January 2017, you attended at residential premises in St Albans in company with three other males with the intention of forcing your way into the home as trespassers intending to steal items of value. It is likely your intention was to steal cash and possibly drugs.
3. You and your co-offenders arrived in two vehicles; one of your co-offenders, Mr Murphy, was armed with a baseball bat; another, Mr Gration, was armed with a firearm which was probably unloaded. You were unarmed. The fourth offender has not been identified and was unarmed.
4. The occupants were not known to you or to your co-offenders. Prior to entry, one of you or a number of you shouted, 'Open up, it's the police'. One of the occupants, NL, had observed on CCTV footage that Mr Gration had a firearm and was wearing gloves. Another occupant, Mr Srokoswki, fled the premises from a rear exit.
5. The door was kicked in and all four of you entered. Whilst inside the premises, items of value were collected by your group. At one point, a demand was made of Ms NL for cash. One offender, probably Mr Murphy, intervened and told her not to worry and that they would not hurt her because she was a woman and they did not expect her to be at the house. It is likely you were not even in the room when that exchange took place.
6. After collecting items of value and returning to the vehicles, you all fled the scene. The police arrived at that point. One of the vehicles containing a number of stolen items crashed into a tree during the escape and the occupants fled on foot. The fingerprint on the outside of this vehicle and an item of clothing located near the scene was central to the circumstantial case against you.
7. You were arrested on 9 August 2017 after DNA evidence linked the item of clothing to you.

Effect on Victim

8. The principal victim, NL, made a victim impact statement. As one would expect, having gone through such a terrifying experience, it has had a lasting effect. She has severe anxiety, she suffers nightmares, she does not feel safe in her own home understandably and her behaviour and enjoyment of life has been dented. The trauma has affected not only her but those dear to her.
9. None of these impacts are surprising given the nature of the crime and the circumstances of this example of it. Armed men bursting into a home at night with malevolent intent is one of the most frightening experiences that one contemplates as a member of our community. Ms NL was defenceless and terrified. The trauma she has experienced as a result of your crime is significant.

Objective gravity of the offending

10. The offence of aggravated home invasion carries a maximum penalty of 25 years which reflects the objective seriousness of the offence.
11. Salient aspects of the offending in your case include the fact that you were aware that one of your co-offenders was armed with a baseball bat and the other was armed with a firearm. You were in company with three other men. The offending took place in the dead of night, forced entry was accompanied by raised voices, faces were covered or obscured at least, there were persons present and you knew that or at least were reckless as to their presence prior to entry and the facts demonstrate a level of planning.
12. The majority of these matters reflect the bare elements of the offence and are not aggravating features; the presence of the firearm does not fall into this category, however.
13. The number of intruders, the nature of the weapons and the time and mode of entry are all features that give this offence its character. It is a serious example of the crime of aggravated home invasion with intent to steal. It was not of a particularly long duration, however; no one was physically harmed and the value of items stolen was not significant.
14. Your counsel made submissions on the plea in relation to the circumstances of the offending as follows; that you were the person in the grey hoodie, which is conceded, and you were a follower rather than a leader, you entered the house last; you are not said to be driving either vehicle; you were unarmed upon entry and you did not arm yourself once inside the house.
15. Whilst you were disguised on entry, you removed the disguise once inside. You did not engage in violence in or around the victim. You were outside of the room when the demand for cash was made. You had no confrontation or physical interactions with the victim. You did not engage in any destruction of property. It was put that apparently you left the premises over the back fence without actually taking any personal property belonging to the victims and of course the utterances of those in the room with the victim, in particular the statement, 'You weren't meant to be there', leads to the inference that you did not anticipate that a woman would be present.
16. On balance, I accept those matters.

Personal Circumstances

17. Your early childhood was one of disadvantage, deprivation, neglect and trauma. You were born in Melbourne, initially raised in Blackburn, but you moved with your mother multiple times. You are the eldest of five although the only child of your parents' union; you have other half-siblings. One half-sister, Lana, unfortunately passed away in early 2019. You were unable to attend the funeral which has been a cause of distress for you. You have another 28-year old half-sister who lives in Ballarat and who you speak to, a half-brother in Perth and another half-sister.
18. Your biological father left the family soon after your birth. You met him briefly at the age of 23. You have no meaningful relationship with him.
19. From the age of four, you had an adoptive father who was a heroin dealer. This man encouraged you to steal from a young age. At the age of 12, you were present when he died of a heroin overdose. Your mother overdosed on the next day but was treated by paramedics.
20. For a long time you thought your adoptive father was your real father. He was a man who was physically abusive towards you but nonetheless you were attached to him believing him to be your father and certainly a father figure. To this day, you still remember lying on his deceased body and hoping he would wake up.
21. Your mother was unstable and absorbed in drug use. There was domestic violence between her and your adoptive father. She did not intervene when he physically assaulted you and your siblings. Your mother now lives in Altona Meadows and has stabilised in recent years having ceased heroin use.
22. You were removed from your mother's care by the Department of Human Services at age five. You were placed in foster homes during your childhood. At the age of six, you were admitted to Allambie on a long-term basis and you left there on multiple occasions as a child due to the trauma experienced there.
23. You spent time in Baltara, aged 14, and Turana, aged 16. You fell in with other displaced youths and commenced to fall in with criminal activity and criminogenic circles.
24. When you were aged eight, you were placed in Austin Care, you were placed in a residential unit in Sunshine West along with your half-brother who was then aged two. Unfortunately, he fell victim to sexual abuse; experiences that were observed by you. You were also sexually assaulted.
25. You have had contact with the Royal Commission in relation to these matters.
26. I was provided with a number of reports which spoke to both your diagnosis of post-traumatic stress disorder, anxiety and major depressive disorder largely due from your experiences in childhood and also an acquired brain injury stemming from apparently a motor vehicle accident and also assaults.
27. You began using cannabis in childhood reportedly from the age of eight. It became regular in your teenage years. You were using amphetamines daily from the age of 14. You were using methylamphetamine and cocaine on a regular basis apparently from the age of 19. You experimented with heroin in your teenage years.
28. Alcohol was something you were introduced to and engaged with from around 14 years of age.
29. As I stated at the outset, that is only a brief summary of your personal history in your early childhood years. These matters are set out in more detail in the first report of Ms Cidoni and, indeed, in the historical reports including the report of Dr Joseph Posnanski where he goes into more detail about those matters.
30. I find the circumstances of your upbringing, the disadvantage, deprivation, neglect and in particular the trauma you were exposed to gives rise to the considerations highlighted in the High Court decision of Bugmy v The Queen.
31. In particular your personal development, the post-traumatic stress disorder that has flowed from early childhood trauma, and your introduction to drug use at a young age, have all been factors arising out of your upbringing that have set you on a downward path from a young age.
32. In Bugmy v The Queen, the High Court described the manner in which those factors are relevant to an assessment of an offender's culpability in the following terms,

'The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

'Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'

33. These principles have relevance to your case, in particular to your inability to remove yourself from a destructive drug lifestyle and pursue more gainful and law-abiding lifestyles as well as going someway to explaining your social difficulties and need for supports to avoid you slipping back into a criminogenic sphere.
34. There is a tension of course between the Bugmy considerations and other sentencing factors, such as prospects of rehabilitation. You have numerous prior convictions for dishonesty offending.
35. In June 2013, you were convicted of two charges of burglary, four charges of theft. In August 2011, six charges of burglary, four of theft and one charge of dealing with prospects suspected as being proceeds of crime. In December 2009, you were convicted of three counts of aggravated burglary with a person present, 17 counts of burglary and other offences. In February 2009, five counts of burglary, nine of theft, four of burglary and other offences. In January 2008, nine counts of burglary, 16 counts of theft, two counts of attempted burglary, attempted theft and other offences. In 2005, you were convicted of aggravated burglary and other matters.
36. That is not the entire list. That is about halfway through your prior convictions for burglary, aggravated burglary and associated matters.
37. Whilst you are not to be resentenced for your previous offending, these prior convictions are relevant for the court to consider in assessing your prospects of rehabilitation and determining the weight to be given to specific deterrence and the protection of the community.
38. I was referred to the case of Norman Stewart v The Queen, medium neutral citation, [2015] VSCA 368, where at 26, the court stated,

'Sentencing courts are obliged to take into account circumstances of hardship and deprivation, and routinely do so. The task of the sentencing court is particularly difficult, however, in a case such as the present, where the offences before the Court are offences of violence, committed by a recidivist violent offender.'

39. I pause to point out of course that is not the case in respect to you, Mr Goodfellow, however, the point remains apposite.
40. In DPP v Terrick, the court distilled the following relevant propositions from the authorities dealing with the relevance of disadvantage to sentencing,

'1. The individual circumstances of an offender are always relevant to sentencing.

'2. Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or of the offender's alcohol or drug addiction.

'The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on; the nature and extent of the disadvantage; the nexus (if any) with the offending; and the relevant importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.

'Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.'

41. Put another way, the effects of profound deprivation do not diminish overtime but other considerations may surpass the weight to be given to these effects and overtake them.
42. In your case, as I have stated, the Bugmy principles have application. There are other relevant sentencing factors which pull in the other direction.
43. During your period on remand and in custody, you have endeavoured as best you are able to complete a number of courses and programs with a view to developing yourself, helping identify the triggers in your life which lead you to negative influences and to help you identify the supports that you need in place to remain free from a criminogenic lifestyle.
44. I take those matters into account. I consider that you have made efforts to rehabilitate. I find that you have the best of intentions in relation to remaining drug free and abstaining from a criminal lifestyle, although I consider that notwithstanding those intentions, one must be guarded about your prospects of rehabilitation.
45. A mandatory minimum non-parole period of three years imprisonment for adult offenders applies to the offence of aggravated home invasion. The mandatory minimum applies unless special reasons exist in accordance with s.10A of the Sentencing Act 1991.
46. Your counsel relied upon mental impairment as providing special reasons, in particular, post-traumatic stress disorder and your acquired brain injury.
47. I have already referred to Ms Cidoni's first report. I received an addendum report from Ms Cidoni and I also heard evidence from her on the plea.
48. I also note that I have received a neuropsychological assessment report from Dr Michelle Mirandon and Rachel Ellis dated 16 June 2010; a psychological report from Dr Joseph Posnanski dated 1 August 2011; a report of Arbias case manager, Nathan Capicchiano, dated 13 January 2017; a report from Arbias team leader, Rachel Price; and a Melbourne Addiction Program report by Jo Beckett dated 8 January 2017.
49. The reports and evidence from Ms Cidoni together with these historical reports and also the report form Jo Beckett lead me to accept quite comfortably your acquired brain injury and its consequences and also the suggested post-traumatic stress disorder.
50. I accept that you are a vulnerable individual, one who has difficulty in most social settings but, in particular, in the custodial setting and that hyper-vigilant and avoidant behaviour are factors that you battle with in your custodial setting.
51. I accept that you have significant difficulties in attention span and working memory, speed of information processing, planning and organisation. All of these matters effect the ease with which you can pass through the custodial setting.
52. In her first report, Ms Cidoni writes that

'A letter of support from Arbias who are providers of disability support due to your acquired brain injury was informative. Mr Goodfellow has a childhood history of severe sexual physical and emotional abuse.'

53. She went on to detail those matters.
54. Her conclusion in brief terms in the first report was that she felt that as a result of your condition, your experience in custody is weighing more heavily upon you and your coping is evidently very poor. You are fearful and paranoid and at an increased risk of emotional and behavioural deterioration.
55. Ms Cidoni provided an addendum report. She made an assessment of you and assessed your capacity as falling into a range where 95 per cent of people do better.
56. She said,

'You are a stressed and fearful man and have difficulty interpreting the actions of others. You are less likely to ask for or seek help and to undertake programs as most of your energy is focused upon your own being. For these reasons, your experiences weigh more heavily upon you and you are at an increased risk of emotional and behavioural deterioration.'

57. Ms Cidoni expanded on these matters in oral evidence before me.
58. I have considered s.10A. I have been required to consider whether, because of your mental functioning, the burden of incarceration would be significantly more burdensome for you than otherwise. That word 'significantly' is the key word in relation to considering that test.
59. I found it useful to compare the word 'significant' as opposed to the amended section which reads 'substantial' and I accept that the significant test is not as high as the current test which is one of ‘substantial.’ It is ‘significant’ that applies in your case.
60. I find on balance that the impaired mental functioning described will result in you being subject to significantly more than the ordinary burden or risks of imprisonment. However, as discussed on the plea, this finding can be simply academic where other factors in the sentencing mix require the setting of a non-parole period at or above the mandatory minimum.
61. Submissions were also made on your behalf in relation to the Verdins factor which is sometimes described as hardship in custody. The findings I have made in relation to the effects of mental impairment on your experience in custody are appropriate to take into account in a Verdins sense as urged on me by your counsel and I do so.
62. Totality is also an issue I have had regard to given your custodial history on remand and the pre-sentence detention available to you as compared to the length of time you have been in custody.
63. You were arrested and interviewed in relation to these offences on 9 August 2017 and then bailed two days later. You were remanded on unrelated charges on 23 January 2018. I was told that your bail was revoked in relation to the present matter on 5 April 2018.
64. On 16 August 2018, you were sentenced for other matters and 365 days of

    pre-sentence detention was declared. I have been advised that you have 409 days of pre-sentence detention available in relation to this matter, however, you have spent a total of 616 days in custody during this period of custody.

65. Is that correct? Have I got that right?
66. MS GODING: That is right.
67. MS CASEY: Yes, Your Honour.
68. HIS HONOUR: That time you have spent in custody not available to you as pre-sentence detention, I have taken into account by the application of the totality principle.
69. Turning to parity, I have now sentenced both of your co-accused. On the charge of aggravated home invasion, Mr Gration was sentenced to five years' imprisonment. He pleaded guilty of course which is a major distinction. On the other side of the scale was he wielded the firearm.
70. There were similarities between his background and yours and I accepted the application of Bugmy principles in his case as I have in yours. One significant difference between he and you was the genuine remorse I accepted in his case and striking will to reform that I found in his case due to his impressive evidence on his plea and also the matters contained in the materials relied upon in that case that spoke to his remorse and desire to reform. Those matters in combination with the Bugmy principles led to a view that the application of mercy was appropriate in his case.
71. Mr Gration's prior convictions were lengthy, largely in a similar category to yours although perhaps worse due to the presence of violent matters.
72. Whilst I accept in your case you are making a genuine attempt to develop yourself and identify your 'triggers' and identify available supports to remain drug free when you are in the community, your prospects are not as pronounced as I found Mr Gration's to be.
73. In terms of the circumstances of offending and given you both ran a trial, your situation is more akin to Mr Murphy. There is one key difference in the role played; he was armed, you were not. There is also reason on the materials to accept that you were the least involved in the crime for the reasons set out by your counsel.
74. Mr Murphy did not have available to him in mitigation the Verdins factor I have accepted in your case. Totality factors are of a much greater magnitude in your case than what applied to Mr Murphy. In your case, Bugmy principles apply to some extent; in Mr Murphy's, they did not.
75. However, you have a more significant previous history than Mr Murphy and of course, as I have noted, you were on bail at the time of the commission of this offence. Mr Murphy was, of course, sentenced to six years for aggravated home invasion and six months for theft with three months being cumulative. The non-parole period set in his case was four years.
76. Taking into account the disparate factors as best I am able, I have applied the principle of parity.
77. Turning to sentence.
78. Those who commit the offence of aggravated home invasion must expect condign punishment for their crime. No doubt you would have expected severe punishment if apprehended and convicted at the time of the commission of your crime.
79. General deterrence and specific deterrence in your case are important components of the sentence I will impose. So too is the community's denunciation of the crimes you have committed and the protection of the community. I have also borne in mind your background and prospects of rehabilitation in determining the appropriate sentence.

Sentence

80. On Charge 1, aggravated home invasion, you are sentenced to five and a half years' imprisonment. That will be the base sentence.
81. On Charge 2, theft, you are sentenced to six months' imprisonment.
82. I direct that one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
83. That makes a total effective sentence of five years and seven months' imprisonment.
84. I set a non-parole period of three years and three months.
85. I declare pursuant to s.18 of the Sentencing Act that you have served 409 days as pre-sentence detention.
86. I make the disposal order sought and the forfeiture order sought.
87. Are there any other matters?
88. MS GODING: Nothing further, Your Honour.
89. MS CASEY: No, Your Honour. Just when it comes to - if Your Honour is revising your sentencing remarks, at some point you refer to evidence from Ms Lechner rather than Ms Cidoni.
90. HIS HONOUR: Did I? I meant Ms Cidoni.
91. MS CASEY: Yes.
92. HIS HONOUR: Apologies to both of them. All right. Thank you. Yes. Adjourn. We will have Mr Goodfellow taken away now. Thank you.
93. All right. Yes. Adjourn the court.

‑ ‑ ‑