DPP v Armitage (a Pseudonym) [2021] VCC 1190 (23 August 2021)

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

V

ZACHARY ARMITAGE (a Pseudonym)

JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2021, 2 August 2021
DATE OF SENTENCE:	23 August 2021
CASE MAY BE CITED AS:	DPP v Armitage (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1190

Catchwords: Make threat to kill contrary - aggravated burglary - possess a drug of dependence

Sentence: Total effective sentence of two years' and one month's imprisonment. I order that you serve a period of one year and three months before becoming eligible for parole

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Cameron	Solicitor for the Director of Public Prosecutions

For the Accused	Ms A. Hancock	Slades & Parsons Criminal Lawyers

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.

(c) Charge 3, possess drug of dependence, in circumstances as here where it is established on the balance of probabilities that the possession was not for the purposes of trafficking, 5 penalty units.

3 Tendered as Prosecution Exhibit 1 was the Summary of Prosecution Opening dated 18 May 2021. In short, the first victim in this matter is Naomi Fenton^[2], your partner of 10 years. At the time of the offending, you and Ms Fenton were residing in Pakenham with your two-year-old son.

4 Residing next door were victims Macauly Sharpe^[3], Kayla O’Reilly^[4] and Tomas Mill.^[5] At the time of the offending Mr Sharpe and Ms O’Reilly had a seven month-old son.

5 On the afternoon of 25 October 2020, you and your partner were at home. You had been drinking throughout the day. You and your partner got into an argument in which she accused you of leaving your toddler son unattended. You denied this allegation. Your partner told you to get help for your drinking. You blamed your drinking on Daniel Andrews and told your two-year-old son that his mother was a 'cunt.'

6 Your partner told you that she would call the police if you kept going. Your response was to tell her you would 'stab her in the heart and kill her.' You told her that she would not be able to take care of your son. This is the conduct that is the subject of Charge 1, make threat to kill.

7 You then went to the garage. Whilst there, your partner heard a lot of banging and smashing. She sent a text message to her neighbour Kayla O’Reilly asking her to meet her outside.

8 Your partner picked up your son and walked next door where she met Kayla O’Reilly, Macauly Sharpe and Tomas Mill in the driveway of the neighbouring property.

9 She went into the neighbouring house with her three neighbours. Mr Sharpe locked the door behind them.

10 You then called your partner on her mobile phone. You told her that you were 'going to kill them all with a machete.'

11 You then went to the neighbouring property and began to bang on the door. You demanded to be let into the house. Mr Sharpe told you through the front door 'you’re drunk go sleep it off.'

12 You then used a metal pickaxe to pry open the security door and the wooden door. These actions caused damage to both doors. You were told by Mr Sharpe at that time that you were not welcome. Mr Sharpe told Ms O’Reilly, Mr Mill and your partner to go to the backyard of the property. He was fearful that the front door would break. The three of them retreated to the backyard and Ms O’Reilly phoned '000.'

13 The front door then gave way and you gained entry to the house. This is the subject of Charge 2, aggravated burglary.

14 Mr Sharpe retreated to the backyard. He was fearful that you would attack him with the pickaxe in your possession.

15 You followed Mr Sharpe into the backyard. At that time Mr Sharpe picked up a log splitter in response to the threat you posed. You said to Mr Sharpe, 'go for it, I’ll fuck you up with this prybar.' As you said this you lifted the pickaxe above your head.

16 As you went to the backyard, Mr Mill went back into the house. He carried your two year-old son with him. He then went into the driveway and hid behind a car. He did this to protect your son.

17 Mr Sharpe again told you to leave, and on this occasion you did. You went from the backyard of your neighbour’s property, back into the neighbours’ house and left through the front door.

18 Police attended the scene shortly after. You were arrested and a search of your house was conducted. During the search police located 2 small zip lock bags containing cannabis. This is the subject of Charge 3, possess drug of dependence.

19 Police arranged for your attendance at Dandenong Hospital for you to receive treatment for an injury to your leg.

20 You were released from hospital on 27 October 2020 and taken to Dandenong Police Station. During a record of interview conducted that day you made substantial if not complete admissions to what had occurred.

21 You told police that you 'thought everything was fine and then my partner said that she was taking my son next door and that I drank too much.' You said that you 'went over there and banged on the door and they wouldn’t let me in.' You claimed that your male neighbour told you to, 'eff off' and that in response you,' sort of just lost it and I broke the door open.' You said that, 'as soon as I did that, I just turned around and I left and that was it. I did nothing else at that house or that address.'

22 You told police that it was only upon you having, 'ripped the door open' that you realised that you had scared your neighbour and his partner. You claimed that 'the first thing I remember is seeing the look on their faces and I’m like, 'oh, my God. What have I done?' 'And I left.'

23 You told police that you were 'shocked' in yourself and that upon seeing their faces you knew that you had 'done the wrong thing.'

24 The impact of the offence on a victim is a matter to be considered pursuant to s 5(2) of the Sentencing Act 1991. Kayla O’Reilly provided a written victim impact statement that was Prosecution Exhibit 2 on the plea. Ms O’Reilly says that even thinking about what happened brings her to the point of 'numbness or breaking down.' She says she was in fear for her own life and for those of others present. She states that the offending has had a substantial impact on her ability to engage with others.

25 Victims Mr Sharpe and Mr Mill have not prepared victim impact statements, however in their statements to police they describe feeling worried, scared, and terrified, with Mr Mill taking your son into the house and hiding in the driveway to protect him.

26 Victim Ms Fenton has not prepared a victim impact statement. In her statement to police she describes feeling panicked when you were banging on the door and states that she was in fear of the you. She has also provided a character reference for you and I will refer to that shortly.

27 The offence of make threat to kill can be committed in a broad variety of circumstances. In this case, the making of the threat appears to have had little premeditation. It has emerged as an extraordinary reaction of anger towards your partner apparently because of comments to you about a relatively minor childcare issue and a very reasonable observation about your alcohol use.

28 The offence is, however, more serious than simply being unpleasant outburst of anger. Your actions that followed those words revealed the substantial menace that lay behind them.

29 The threat was made whilst you were under the influence of alcohol. This is not a matter in mitigation. I accept that, like many, you had struggled with the pressure of pandemic restrictions, but this in no way excuses your behaviour.

30 By those words you were reckless as to whether your wife would be put in fear for her life. As shown by her choice to flee the house, she felt genuinely threatened because of your words.

31 The maximum penalty of 25 years' imprisonment for aggravated burglary indicates that it is an offence of inherent seriousness.

32 In this case, the offence was committed after you had made a threat to kill your wife, and then told her by phone after she had retreated to her neighbour’s house that you were, 'going to kill them all with a machete.'

33 You were carrying a weapon, namely a metal pickaxe. Your mode of entry to your neighbour’s premises was to use that metal pickaxe to force your way through two doors. At the time of your entry you intended to assault the occupants of the house by causing them fear.

34 You knew that your neighbours, who were themselves parents of a young child, your wife and your young son were inside those premises at the time. Your neighbours had done nothing to involve themselves in your situation.

35 You entered your neighbour’s premises very shortly after your wife had taken your son there, which in turn was very shortly after the threat to kill that is the subject of Charge 1. The offence was a continuation of the outburst of anger. It did not exhibit any careful consideration or preplanning.

36 You have desisted from the offending and left the premises relatively shortly after entry. The very understandable actions of Mr Sharpe in confronting you with a weapon seems to have caused a rapid re-evaluation by you of your behaviour.

37 Your actions placed those inside the premises in substantial fear, as was clearly your intention at the time.

38 The intensity of your anger and the nature of your actions was extreme. This was a very serious example of family violence committed under the influence of alcohol and in the presence of young children.

40 I regard your moral culpability to be substantial. To the extent your behaviour was influenced by alcohol and cannabis use, the choice to consume those substances was purely your own.

41 You are now 30 years old. You were 29 years old at the time of the offending. You have been in a relationship with Ms Fenton for more than a decade and have a three year-old son with her. You have a second child due in February 2022.

43 You are the youngest of four siblings. Your parents separated when you were eight years old. You were educated to Year 9 level.

44 You undertook three years of a boiler-making apprenticeship, though you did not complete that due to an inability to complete the written work that was required by the TAFE course. Your literacy remains at a level described as 'remedial.'

45 After discontinuing your apprenticeship, you worked in a range of semi-skilled roles with a mechanical focus.

46 You suffered a workplace injury approximately 10 years ago. This injury, which involved a deep vein thrombosis in your arm, left you are unable to work. You received a substantial WorkCover compensation payment. This money was used to finance your house.

47 Since being released on bail after the commission of this offending you have obtained work at a tyre retailer in Pakenham. You have been working six days per week. You have recently been selected by your manager to train in an area of mobile tyre fitting which you hope will give you opportunities for additional work.

48 You told psychologist Patrick Newton in the report tendered on your plea^[6] that the caring for your wife is 'central' to your sense of well-being and direction in your life.

49 Ms Fenton gave evidence on your plea and provided written character reference.^[7] She describes you as an 'amazing asset to my life.' She attests to the strong bond you have with your son. She says that you have shown remorse for your actions and are 'doing everything [you] can to better [your]self.'

50 Similar sentiments are also expressed in the character reference^[8] provided by your sister-in-law Darcie Fenton.^[9]

51 You are very fortunate to have that support. This provides a solid basis for your rehabilitation, as well as being a strong motivation to achieve that.

52 The business owner and manager of a tyre company in Pakenham, speaks highly of your qualities both as a person and an employee.^[10] He is fully aware of the charges you are pleading guilty to but notwithstanding that is enthusiastic for you to continue your employment with him.

53 Sherryn King, advanced child protection practitioner working for the Department of Health and Human Services, has been supportive you being permitted to reside at the family home with your wife and son. She recommended, in the interests of protecting your wife and son from the type of violence evident in the matters before this court, that you must leave that home if affected by alcohol or substances.^[11] These matters were reflected in the family violence final intervention order made on 25 March 2021.

54 As I said, a report from psychologist Patrick Newton was tendered on the plea.^[12] As relayed to Mr Newton, you have endured several periods of significant mood disturbance in adulthood. When you were 18, you were the driver of a vehicle that lost control at high speed whilst you were intoxicated. Two of your friends were passengers in the car.

55 That incident resulted in the only prior matter listed on your criminal history. You were given a 12 month Community Based Order for charges including reckless conduct endangering life. The community-based order required you to undergo assessment and treatment for alcohol and drug addiction, and for psychological and psychiatric treatment as directed.

56 Your involvement in the collision caused you distress, and that you had some psychological treatment at the time which you found helpful.

57 Mr Newton also reports that the workplace injury I have already referred to resulted in chronic pain and emotional distress. The aftermath of this injury was an increased reliance upon cannabis and alcohol, which served as self-medication for symptoms of anxiety and depression.

58 Your mental state deteriorated further when, approximately three years ago, your father became gravely ill because of complications from rheumatoid arthritis. He passed away in 2018, shortly after the birth of your son. The severe grief you endured after the death of your father apparently also saw your substance use increase markedly.

59 Further family tragedy followed. You had a four year old niece die from an accidental choking incident. You had an uncle die suddenly from a heart attack. Mr Newton reports that each of these incidents saw your substance use escalate still further.

60 It is in this context that the upheavals because of the COVID-19 pandemic have been something you have found especially difficult to cope with. Your use of alcohol and cannabis has apparently increased.

61 Mr Newton describes your substance use as being sufficiently severe to meet the DSM-5 criteria for the diagnosis of 'moderate to severe substance use disorder' regarding alcohol and cannabis.

62 These are the matters that provide some understanding, not excuse, for your physical and emotional state at the time of this offending. Your personal history reveals that your use of drugs and alcohol has been escalated when you have endured personally traumatic events, and that an escalation in alcohol use has precipitated the events described in the prosecution opening.

63 You spent six weeks on remand after your arrest on these matters. This had the effect of enforcing you to remain abstinent from substances for that period.

64 Mr Newton assesses you as being in 'early remission' from the substance use disorder. He bases this upon his instructions that you have been abstinent since your arrest.

65 There are, however, some further matters of relevance that have arisen since the time Mr Newton made his conclusions which I will address shortly.

66 You have pleaded guilty at a time that was the earliest reasonable opportunity. By your plea of guilty you have spared the time and resources that would otherwise have been expended on contested proceedings. Your plea has meant that the stress and inconvenience that witnesses would otherwise have been subjected to has been avoided. Your plea is of substantial utilitarian benefit. That benefit is of enhanced worth given the pressure placed on court listings because of the impact of pandemic restrictions.

67 You have displayed genuine remorse for your offending. Your admissions to police in the interview fall some way short of being full and frank but are still substantially admit the conduct the subject of the indictment and did contain expressions of contrition for your offending.

68 Your remorse is also evident from your statements to this effect to Mr Newton and in the character references tendered on the plea.^[13]

69 You have only one prior conviction, albeit that it is a serious offence related to alcohol.

70 Since the offending you have voluntarily engaged with professional services to address your issues with alcohol, drugs, and your related behaviour. This includes the six sessions with Dr Stewart, and you have commenced the men’s behaviour change program.^[14]

71 You are employed and your employer has spoken highly of you in a reference tendered to this court, provided with full awareness of the offences you are facing.^[15] You have the ongoing support of your immediate and extended family.

72 These matters provide a substantial basis for optimism about your prospects of rehabilitation.

73 The Community Corrections Order assessment report provided after the plea hearing assessed you to be at medium risk of reoffending.^[16] The conclusions of the Community Corrections Order report were not criticised by either counsel when the matter returned for further plea. I am, however, careful not to have regard for any reference in that report to a recent investigation by Child Protection Services of an incident concerning your son. There is no evidence upon which to make a conclusion one way or the other about this matter and as such I do not take it into account.

74 Most relevantly, the report noted that as recently as June 2021 you relapsed into alcohol use, culminating in you being charged with drink driving on 5 June 2021.

75 This matter was very properly revealed during the plea hearing. Your candour in relation to this event is to your credit. However, alcohol-related offending after the incident, the subject of the charges on the indictment, is particularly concerning. It is especially troubling given that your only prior matter before the courts, more than a decade ago, was also alcohol-related.

76 The report's author states that despite your positive engagement with the assessment, this further offending 'demonstrates a lack of concern for the law and questions [your] ability to remain offence free during the operational periods of corrections order.'

77 Your capacity to address the substance abuse that has been an issue throughout your adult life is the single biggest factor impacting your prospects of rehabilitation. Whilst you have displayed encouraging progress, recent events illustrate that there remains a substantial risk of relapse and it is appropriate to express some caution as to your prospects of rehabilitation.

78 Balancing all these matters, I consider your prospects of rehabilitation to be reasonable, but with scope to improve further if you can address your substance abuse disorder.

79 Ms Hancock, appearing on your behalf, submitted that in all the circumstances of the case that a combination sentence of imprisonment with a Community Corrections Order was both open and appropriate.^[17]

80 Ms Cameron, appearing on behalf of the Director, submitted that having regard for the gravity of the offending as reinforced by the Court of Appeal judgement in Hogarth v The Queen,^[18] that the only appropriate sentence was a period of imprisonment involving a head sentence and a non-parole period.^[19] Ms Cameron also referred the court to the recent case of Alexander (A Pseudonym) v The Queen.^[20]

81 It was contended by Ms Cameron that Alexander showed that a sentence of imprisonment comprising a head sentence and a non-parole period was within the available range for an offence of aggravated burglary committed in the context of family violence. I accept this case as being of assistance on that limited point but is not an especially similar case of use as a direct comparison with the current case.

82 It is necessary that the sentence imposed serve as a deterrent to others from similarly offending. There is some, however lesser, need to specifically deter you from further offending. I must express denunciation for your conduct. I must consider protection of the community. I must impose a punishment that is just in all the circumstances of the case. I must also have regard for what I have concluded to be your prospects of rehabilitation.

83 In all the circumstances I consider that these sentencing purposes can only be fulfilled by the imposition of term of imprisonment to be served immediately. In setting the term for that imprisonment I have considered that the period of imprisonment you have already spent on remand has been made more onerous because of the impact of pandemic restrictions on the prison environment, and that such additional burdens are likely to persist for the foreseeable future.

85 On Charge 1, make threat to kill, you are convicted and sentenced to five months' imprisonment.

86 On Charge 2, aggravated burglary, you are convicted and sentenced to two years' imprisonment.

88 I order that one month of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2.

89 That makes for a total effective sentence of two years' and one month's imprisonment.

90 I order that you serve a period of one year and three months before becoming eligible for parole.

91 Pursuant to s 18(4) of the Sentencing Act 1991 I declare that there are 51 days of pre-sentence detention already served.

92 Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have imposed a sentence of two years and nine months with a non-parole period of two years.

93 The Prosecution have made application for disposal of the pickaxe, hammer and cannabis. This was not opposed by your counsel and I make that order in the terms sought.

96 HIS HONOUR: Thank you, if you can take Mr Armitage back please. Thank you. I thank both counsel for their assistance in this matter. I will adjourn the court until 10.30.

County Court of Victoria

DPP v Armitage (a Pseudonym) [2021] VCC 1190 (23 August 2021)