DPP v Farrugia [2024] VCC 618 (8 May 2024)

Last Updated: 12 July 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-23-00146

DIRECTOR OF PUBLIC PROSECUTIONS
v
SARAH FARRUGIA

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JUDGE:	HIS HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2024 and 8 May 2024
DATE OF SENTENCE:	8 May 2024
CASE MAY BE CITED AS:	DPP v Farrugia
MEDIUM NEUTRAL CITATION:	[2024] VCC 618

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Aggravated Burglary

Legislation Cited: Criminal Procedure Act 2009, Sentencing Act 1991

Cases Cited: Bugmy v R (2013) 249 CLR 571

Sentence: 18 months Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr C. Terry	CMA Law

HIS HONOUR:

1. Sarah Farrugia, on 30 April 2024, you pleaded guilty before me to one charge of aggravated burglary with intent to commit an offence involving intentional damage, which carries a maximum penalty of 25 years’ imprisonment, and today you pleaded guilty to one related Summary Offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months’ imprisonment.
2. Your pleas followed your acceptance on 30 April 2024 of a sentence indication, pursuant to s208 of the Criminal Procedure Act 2009, that upon a plea of guilty I would likely impose a community correction order with no further time in custody, subject to a favourable assessment by Corrections. Pursuant to s209 of the Criminal Procedure Act 2009, in these circumstances I must not impose a more severe sentence than the sentence type or maximum total effective sentence indicated at that sentence indication hearing.

Circumstances of offending

3. The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 8 May 2024 which is essentially an amended version of the summary tendered at the sentence indication hearing. That document contains an agreed factual outline of your offending conduct.
4. By way of brief summary, on 25 or 26 March 2022, Matthew Fazzari, a person known to both you and your co-accused Ben Pisano, took two laptop computers belonging to Mr Pisano from the home where you were residing with Mr Pisano as flatmates, without Mr Pisano’s permission. At the time, Mr Fazzari resided at
   Dalray Court, Keilor Downs, hereinafter referred to as the Keilor Downs address, with Melinda Hodgson.
5. Later, on the evening of 27 March 2022, following an abusive message from
   Mr Pisano to Ms Hodgson about those laptops, you and Mr Pisano arrived separately at the Keilor Downs address. You approached the front door of the house, in the company of Mr Pisano, wielding a metal hammer. You began striking the exterior of the property repeatedly, causing extensive damage to the garage door, the rendered facade and the front security door. Mr Pisano was waiting behind you, holding a wooden pole. When Mr Fazzari came to the front door and asked who was there, you identified yourself. Mr Fazzari opened the wooden door, believing the security door to be locked. At this time, you opened the security door and entered the property yelling, and you began smashing holes in the walls of the hallway with the hammer. This was witnessed by Ms Hodgson, who was present in the hallway at the time. Your entry into the property as a trespasser, with intent to damage, forms the basis of the aggravated burglary charge. Mr Pisano pushed through the front door, wielding the pole over his shoulder, and advanced towards Mr Fazzari, who punched Mr Pisano causing him to fall to the ground and drop the pole. Mr Fazzari again struck Mr Pisano, before a third party entered the house and intervened to stop the fighting. You then demanded the return of the laptops previously taken by Mr Fazzari. Once they were provided, you left the property. At the time of this incident, you were on bail with regards to a charge of possession of methylamphetamine dating from July 2020, hence your liability for the related Summary Offence of committing an indictable offence whilst on bail.
6. You were later arrested by police on 5 April 2022, and in your police interview, whilst admitting your presence and, to some degree, responsibility, to a significant degree you deflected responsibility and made somewhat bizarre references to one of the victims in relation to this matter, Mr Fazzari, holding and pointing a machine gun.
7. You then spent nine days in custody before being bailed on 13 April 2022. You have remained on bail since this time, a period exceeding two years.

Nature and gravity of your offending and your level of culpability for it

8. Neither Mr Fazzari nor Ms Hodgson provided victim impact statements in this matter, though it can reasonably be inferred that they were adversely impacted by your offending.
9. In general, the seriousness of your offending is of course reflected in the maximum penalty for the offence of aggravated burglary, 25 years’ imprisonment. Your conduct occurred at the home of Ms Hodgson and Mr Fazzari, at night-time, a place where they were entitled to feel safe. Whilst you are charged separately to Mr Pisano, you attended the property essentially in company, and the sight of both you and Mr Pisano armed with implements at the entrance to their home, in the evening, must have been a frightening sight for the occupants. Notwithstanding any prior conduct of Mr Fazzari with regards to the laptops, you had absolutely no right to essentially barge into the home of the occupants as you did. Such conduct essentially constitutes vigilante conduct, which cannot in any way be supported by the Court.
10. Whilst you are not separately charged with the damage caused to the property, I take into account this conduct in analysing the gravity of the aggravated burglary. Clearly, your intention to cause damage at the point of entry was strongly held, given your subsequent conduct. Overall, this was an aggravated burglary with a confrontational element, elevating the seriousness of this particular example of aggravated burglary. Whilst I accept that this was not a more serious species of aggravated burglary, constituted by an intention to assault, your conduct nevertheless represents a significant example of aggravated burglary with an intent to cause damage, for the reasons I have outlined.
11. In terms of your level of culpability, I accept that your conduct was committed in the context of you then being in the grip of drug addiction. Your counsel indicated that you essentially flew off the handle upon realising that the laptops had been taken by Mr Fazzari, and your decision making was impacted by your drug use at the time. Whilst this may explain to a degree your conduct, it in no way excuses it. For the reasons that I will shortly outline, I am satisfied that your moral culpability is reduced somewhat due to your disadvantaged background, pursuant to the well known Bugmy principles.^[1] Overall however, I regard your level of culpability for this offending nevertheless as being significant.

Personal circumstances

12. Your personal circumstances were set out in some detail by your counsel in written submissions, and they were further referred to during your assessment with Corrections regarding your suitability for a community correction order.
13. You are currently 38 years old. Your parents separated when you were six months old, with your mother leaving your father due to his violence and addiction to heroin. Following your parents separation, you apparently had intermittent contact with your father until the age of six, before he lost all access after a court order. Your father had apparently engaged in harassing and stalking behaviour with your mother prior to this time, with police regularly being called to intervene.
14. Your mother Christine subsequently re-partnered, and you have step–siblings born when you were aged seven and ten respectively. You apparently began to rebel at around the age of 12, as you felt unwanted compared to your step–siblings. At the age of 12, you learnt that your father had died in the context of a heroin overdose. You left your family home and went to live with your paternal grandparents whom you did not previously know, and they apparently blamed you for the death of your father given your absence of contact with him which they say led to him overdosing.
15. You were subsequently taken into foster care after you ran away from this home. With DHHS involvement, you resided at a foster home in Sydenham until the male carer was arrested for sexual offending, after which time you were moved to a foster home in Keilor which was largely a positive experience for you. You were then moved to a foster placement in Sunshine where, concerningly, you lived in a caravan at the back of the foster carers home, in the context of being neglected by the carer and effectively left to your own devices. You were told by your carer not to come home on the weekends, and so you were essentially left to sleep rough or on friends’ couches each weekend. You subsequently moved into a friend’s home for a two year period between the ages of 16 and 18, which you have reported was essentially a positive experience.
16. At the age of 18, exiting DHHS care, you moved in with an aunt and worked on rebuilding your relationship with your mother and stepfather over the next few years.
17. In your early twenties, in the context of a relationship at the time, you were introduced to methylamphetamine. You quickly became addicted, and that addiction it seems governed your life between the ages of 22 and 36. During this time your social network, almost exclusively it seems, consisted of other drug users.
18. Unusually, your fairly limited criminal history did not commence until August 2017, in your early thirties. At the age of 27 you apparently won approximately $30,000 on a pokies win, and used these winnings to embark upon a period of residential rehabilitation, spending some 10 weeks in a facility and then a further four weeks free of drugs before relapsing.
19. You received a community correction order in August 2017 for offending which you were unable to describe, and you subsequently breached that community correction order in February 2019 before subsequently completing a further correction order. You indicated both to your counsel and to the Corrections Assessing Officer that your previous contravention of a community correction order occurred in the context of you being a victim of domestic violence which impacted on your ability to maintain your engagement with the order.
20. You have indicated, and I accept, that your current offending occurred in the context of your daily use of methylamphetamine and its adverse impact upon your behaviour generally and your decision-making capacities specifically. At the time of your offending, you were sharing accommodation with your co-accused
    Mr Pisano. Whilst you had met your now fiancé Adrian Pelle, an individual who has clearly proven to be a positive influence on your life, your kept your drug use and associated problematic behaviour from him in the early stages of the relationship, existing at the time of the current offending.
21. I accept that the nine days spent in custody following your arrest for these matters would have been a significant wake up call for you. In these circumstances, you were forced to confront your problems and divulge your problematic drug addiction to Mr Pelle, and I accept that upon your release on bail you embarked upon your significant rehabilitative path, the details of which I will shortly refer to.

Sentencing factors

22. In formulating an appropriate sentence in your case, the Sentencing Act 1991 requires me to have regard to various factors. I have already referred to the maximum penalties, the nature and gravity of your offending and your level of culpability for it, and your previous character.
23. Whilst your plea of guilty is not an early plea, it nevertheless carries with it a significant utilitarian value. Through your plea of guilty, witnesses have been spared the need to give evidence and there has been a considerable saving of court resources.
24. I am further satisfied that a mitigatory allowance is warranted due to your remorse. In addition to your pleas of guilty, you gave evidence before me at the sentence indication hearing on 30 April 2024 where I formed the view that you had a keen appreciation of the impact of your offending behaviour on your victims. Furthermore, in your community correction order assessment interview you were apparently willing to take responsibility for your offending and acknowledged the impact on your victims. In these circumstances a further mitigatory allowance for remorse is warranted.
25. As I have indicated, you have been on bail now for a period just exceeding two years. During that period, you have complied with your bail conditions and not reoffended. I am satisfied that the anxiety associated with this matter hanging over your head for an extended period of time warrants a mitigatory allowance. Furthermore, I am satisfied that within this extended period of time you have engaged in nothing short of transformative behaviour change, a matter very much standing to your credit. The character references from your siblings and your mother, together with your fiancé Mr Pelle who was present at the hearing before me last week and again today, clearly evidence your significant reformation within the intervening period. You have meaningfully developed your relationships with your family, and you indicated in evidence before me that you now spend time with your mother on a daily basis. You reside with your partner Mr Pelle and you are engaged to be married later this year. You work part-time in your fiancé's excavation business in an administrative capacity, from home. Your first child, Ariana, was born in July 2023. You reside with your family in Patterson Lakes, on the opposite side of Melbourne to where your drug using peers had resided. In evidence before me, you indicated that you have now been abstinent from drugs for a period exceeding two years, having relied upon tools previously given to you in your previous efforts of rehabilitation, and relying upon your own strength of character. I accept the evidence you gave in this regard. Overall, I was impressed by your evidence, and I accept that you have worked very hard in difficult circumstances to turn your life around. Your prospects for rehabilitation now must be seen as fairly positive, and the need for community protection therefore is significantly reduced.
26. In all the circumstances, I am satisfied that a return to custody in your case would be nothing short of catastrophic, particularly with regard to the impacts of incarceration on your young family.
27. In formulating an appropriate sentence in your case, I have had regard to current sentencing practices, which constitute just one of the many factors relevant to the sentencing exercise. In that regard, I have considered the authorities provided by your counsel. Whilst clearly sentences of imprisonment have been imposed for the serious offence of aggravated burglary, this is not always the case.
28. Your counsel submitted that the appropriate sentence in your case was an appropriately constructed community correction order. Likewise, the prosecution conceded that a community correction order would be within the appropriate sentencing range, having regard to the particular circumstances of your case. You have been assessed favourably by the Office of Corrections, and you have been found suitable for a community correction order with various conditions recommended.
29. In my view, the relevant factors, purposes and principles in this case can be accommodated through an appropriately constructed community correction order. It is my intention to impose a community work condition as part of that order to reflect the need for punishment, though this will be tempered in light of your personal circumstances as set out in your letter to the court dated 7 May 2024, Exhibit D2 in these proceedings.
30. Whilst I acknowledge the difficulties associated with the performance of unpaid community work, there is, in my view, a need nevertheless in the broader interests of the community for a penalty to reflect the punitive nature of that penalty through the imposition of a degree of community work. I note in your assessment with Corrections last week you indicated that there were no impediments to the completion of community work and that you have the support of your family. To be clear, the amount of hours I am about to impose has been tempered by virtue of your current personal circumstances.
31. In my view, other rehabilitative conditions are needed on this order, though I will not accede to the recommendation of Corrections with regards to the imposition of a condition relating to offender behaviour programs. In my view such a condition is not necessary given the already positive steps that you have taken and the passage of time since the commission of this offending.

Sentence to be imposed

32. On the charges of aggravated burglary and committing an indictable offence whilst on bail, you are convicted and ordered to undergo and complete a community correction order.
33. The duration of the order will be 18 months. The order will commence today.
34. In addition to the core conditions, you will be required to complete 120 hours of community work, and you will be required to be subject to supervision, and a condition relating to treatment and rehabilitation with regard to drugs.
35. Pursuant to s48CA of the Sentencing Act 1991, I order that 50 hours of treatment and rehabilitation may be countered towards the community work condition.
36. I will return to the community correction order in a moment.
37. I make the disposal order with regards to the hammer, that application not being opposed by you.
38. On my reading of the Sentencing Act 1991, a s6AAA declaration is not required and accordingly I do not propose to give one.
39. Ms Farrugia, I can only impose a community correction order upon you if you agree to completing the community correction order and, as a matter of logic, you can only agree to complete the order if you understand what is involved in the order and what is involved should you breach the order. I am going to read out the conditions to you carefully and then explain to you the consequences should you breach.
40. All community correction orders have mandatory terms that apply to them and they are as follows;
    1. that you must not commit another offence for which you could be imprisoned during the operation of the order;
    2. you must comply with any obligations or requirements prescribed;
    3. you must report to and receive visits from Corrections;
    4. you must report to the Community Corrections Centre nearest you, that being in Frankston, within two clear working days of today, that is, the day the order starts;
    5. you must let a Community Corrections officer know within two clear working days of any change of address or job;
    6. you must not leave Victoria without first getting permission to do so;
    7. you must obey all lawful instructions and directions of Corrections.
41. In addition to those mandatory terms, there are a number of additional conditions and they are as follows;
    1. That you must perform 120 hours of unpaid community work over the 18 month period;
    1. I order that 50 hours of the 120 hours can be satisfactorily undertaken through the treatment and rehabilitation condition. That condition is that you must undergo assessment and treatment including testing for drug abuse or dependency as directed; and
    2. I order that you be under the supervision of a community correction order for a period of 18 months.
42. These are the conditions attaching to the order.
43. At any stage during the operation of the community correction order, if your circumstances warrant it or if they change, you can apply for the order to be suspended for a period of time.
44. You can also come back to court and apply for the order to be varied should your circumstances change.
45. Whilst the order is in operation, if you breach any condition of the order without reasonable excuse, you can be charged with contravening the order. That contravention proceeding would likely come back before me.
46. The maximum penalty for contravening a correction order is three months' imprisonment. Perhaps more importantly for you, one of the options available to me is that I can cancel the order and resentence you, so essentially we go back to square one for this serious offending.
47. Knowing all of that, do you agree to comply with this community correction order?
48. OFFENDER: Yes, Your Honour.
49. HIS HONOUR: All right. Yes, I will have – Mr Terry, are you content that your client understands and has been explained to her the rigours of the order and consequences?
50. MR TERRY: Yes, I am, Your Honour.
51. HIS HONOUR: Yes. All right, well I will ask that a copy of the order be taken down to the back of the court for signing by Ms Farrugia.
52. Parties agree no 6AAA is needed?
53. MR TRIANDOS: That's correct, Your Honour.
54. HIS HONOUR: Yes. Mr Terry, if you could accompany my associate down the back of the court and make sure your client understands what she is signing.
55. I have signed that order, it is now in force. Are there any other matters that I need to attend to, Mr Triandos?
56. MR TRIANDOS: No, Your Honour.
57. HIS HONOUR: Mr Terry?
58. MR TERRY: No, Your Honour.
59. HIS HONOUR: Ms Farrugia, stand up one last time before I leave the Bench. I sincerely hope that you manage to make your way through this order. I understand what you said in your letter, I understand it is going to be difficult for you to navigate the unpaid community work with your personal circumstances. I am sure, if he has not already, Mr Terry will explain to you that in real terms it is 70 hours over 18 months so it is a modest amount of hours and it is the lowest amount of hours that I could reasonably impose having regard to the justice of this matter. There needs to be a punitive aspect to the order.
60. If you find yourself in trouble or you are genuinely unable to undertake those hours, you need to speak with Corrections, there are options available to you. Can I suggest strongly one of them is not just going nothing because if you do nothing, you will be breached and if you come back before me you can expect a different outcome. Does that make sense?
61. OFFENDER: Yes, Your Honour, thank you.
62. HIS HONOUR: Yes, all right. Good luck with the order and everything else that is going on in your life.
63. OFFENDER: Thank you.
64. HIS HONOUR: And I sincerely hope that I do not see you again because if I do, it means that there is a problem.
65. OFFENDER: Yeah.
66. HIS HONOUR: Yes, thanks, adjourn the court please.

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^[1] Bugmy v R (2013) 249 CLR 571.