R v Gilmore; R v Pleace; R v Vatalis [2015] NSWDC 215

District Court New South Wales

Medium Neutral Citation: R v Gilmore; R v Pleace; R v Vatalis [2015] NSWDC 215 Hearing dates: 3 July 2015 Date of orders: 03 July 2015 Decision date: 03 July 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: In each case sentenced to imprisonment, see paragraphs [30],[31], [32] and [33] Catchwords: CRIMINAL LAW – Sentence – Assault occasioning actual bodily harm in company – Break and enter with intent to steal – Attempt break, enter and steal – Possess house breaking implements – Common assault Category: Sentence Parties: The Crown Troy Gilmore Troy Douglas Pleace Jordana Vatalis Representation: Counsel: Mr D McCallum for offender Gilmore Mr S Howell for offender Pleace Mr A Hallis for offender Vatalis

Solicitors: Director of Public Prosecutions Legal Aid Commission for offender Gilmore Benjamin & Khoury for offender Vatalis File Number(s): 2013/3717382014/103932013/3864722013/386475

SENTENCE 1. HIS HONOUR: Appearing today for sentence are three people, Jordana Vatalis, Troy Pleace and Troy Gilmore. They have each pleaded guilty to an offence of assault occasioning actual bodily harm in company. In addition, Mr Gilmore has pleaded guilty to an offence of break and enter with intent to steal, and when I sentence him for that matter he asks that I take into account a number of other matters, two offences of attempted break, enter and steal, an offence of possess housebreaking implements, and an offence of common assault. All of those offences were committed at around the same time as the assault occasioning actual bodily harm offence. I will deal firstly with the facts of that offence. 2. In early December 2013, a man by the name of Benjamin Greeney, who had previously been in a relationship with Ms Vatalis, was at home. There was a knock at the door. He answered the door and he saw Mr Pleace. He knew Mr Pleace from previous dealings. He knew that Mr Pleace was involved in a relationship with Ms Vatalis. He allowed Mr Pleace to come into his home. After a while, Mr Greeney asked Mr Pleace to leave his unit and he did so. However, about half an hour later there was another knock at the door. When he opened the door this time, Mr Pleace had returned and so had Ms Vatalis and Mr Gilmore. Mr Greeney knew Mr Pleace, as I mentioned, and he also knew Ms Vatalis. Indeed, earlier that day he had had an argument with her. 3. Violence erupted soon afterwards. Mr Gilmore punched Mr Greeney to his face, which caused him to stumble backwards into his unit. Mr Gilmore punched him a further number of times as Mr Greeney put up his arms around his head to protect himself. He fell over near a doorway within his unit and was kicked in the stomach by Mr Pleace. Mr Gilmore then picked up an acoustic guitar and hit Mr Greeney across the back with it. He tried to get up but was grabbed by one of the offenders and tackled to the ground. 4. Mr Pleace then went over to the victim. Everyone noticed that he was holding a knife that he had obtained from Mr Greeney's bedroom. It is accepted by the prosecution that neither Ms Vatalis nor Mr Gilmore knew of the presence of a knife before Mr Pleace armed himself with it. It was a knife with a significant blade, about 30 centimetres long. Mr Pleace threatened Mr Greeney by saying "don't tell anyone about this. If anyone asks, you don't know anything, otherwise I'll come back and kill you." Mr Greeney, perhaps thinking that the matter was over, went to stand up. In response, Ms Vatalis struck him to the head with the acoustic guitar. 5. Ms Vatalis then walked towards the front door and told the others "let's go." She walked out of the unit. As a parting gesture perhaps, Mr Pleace approached Mr Greeney and held the knife towards him and said something, verbally threatening Mr Greeney with the use of the knife. Mr Greeney closed his eyes in fear and when he opened them he saw Mr Pleace and Mr Gilmore leaving the unit. Mr Greeney closed the door. He did not call police at first. He noticed that he was injured and fell asleep. 6. The following day he did contact police and report the assault. The injuries that he sustained in the attack were photographed. He sustained a fractured left middle finger, which was managed without an operation being necessary by being immobilised in a splint, as well as bruising, tenderness and abrasions to his face, head, left shoulder and forearm. The three offenders were arrested fairly soon after the events I have described. As I mentioned, Mr Gilmore is not only to be sentenced for that matter but also for another offence. 7. The other offence for which Mr Gilmore is to be sentenced occurred in the following circumstances. The offender and another person walked into the grassed common lawn area of a block of units in Surry Hills. Accessible from that area is a balcony of a man by the name of Robin Stevenson. Mr Gilmore has seen Mr Stevenson's balcony and pushed through some bushes onto that balcony. The female accompanied him. Mr Gilmore produced a screwdriver and began looking closely at the lock of the balcony door. It is clear, and his plea of guilty acknowledges it, that he was intending to break into the premises, using the screwdriver if necessary, and then steal whatever he could within it. Before he did that he put his face to the glass balcony door to look inside. 8. Mr Stevenson observed all of this and he smacked the glass door to scare Mr Gilmore away. He opened the glass sliding door and yelled through the steel security door "get off my balcony, get the fuck off my balcony." Fortunately, Mr Gilmore and the female did. They started to run away. 9. Mr Stevenson took his camera phone and began following the two, intending to take a photo of them. He did manage at one stage to take three good quality photos of Mr Gilmore and the female from about 2 metres away. That is the offence for which Mr Gilmore must be specifically sentenced. When I sentence him for that matter I take into account a number of other offences which I will shortly describe. Whilst following the two, Mr Stevenson called police. At one stage, Mr Gilmore turned around and threatened Mr Stevenson saying "wanna go mate?" running at Mr Stevenson as he did so. This caused Mr Stevenson to run away in fear of being assaulted. 10. All of this occurred in the evening of 9 December. The following morning the offender tried to break into two other premises, in each case by trying the glass door on the balcony of a home unit. As he did so, he was being observed by a witness who contacted the police. Eventually he was arrested and when searched he was found to have a number of items in his possession, in particular a screwdriver with a yellow and black handle, and a green coloured gardening glove. By his plea of guilty he admits that those items and others found with him were housebreaking implements. 11. It is to be noted that Mr Gilmore had been released from custody only very shortly before committing the offences that I have described. He was on parole at the time of this offence. I regard that as an aggravating feature of his offending but in order not to double count, despite the fact that his parole was revoked, I will commence the sentence that I will impose upon him from the date of his arrest. While mentioning breaches of conditional liberty I should refer to the circumstances at the time of her offending. Ms Vatalis was on a s 9 bond. 12. Each of them has pleaded guilty to the offences that I have described but not in identical circumstances. Ms Vatalis and Mr Pleace pleaded guilty in this Court relatively shortly before a trial was due to commence after negotiations resulted in them pleading guilty to assault occasioning actual bodily harm in company. Mr Gilmore offered to plead to that offence whilst the matter was in the Local Court but the prosecution did not accept that offer, I am told on the basis that because Ms Vatalis and Mr Pleace were not willing to plead guilty at that stage, Mr Gilmore's plea would not be accepted either. He pleaded guilty to the attempt break enter matter with intent to steal in the Local Court. Accordingly, the sentences I impose upon Ms Vatalis and Mr Pleace will be 15% less than they would otherwise have been, and the sentence on Mr Gilmore 25% less than it would otherwise have been. 13. Of course, I have to ensure that no offender has a justifiable sense of grievance when he or she compares the sentence that he or she has received with sentences imposed upon co-offenders. I have taken into account the various differences between the objective and subjective circumstances. I have also taken into account when the pleas of guilty were entered. As it turns out, the sentences for the assault occasioning actual bodily harm in company that I will impose upon Mr Pleace and Mr Gilmore are identical, but that is not the result of overlooking the principle of parity but applying it. 14. Each of the offenders has faced a number of challenges as they were growing up. I will deal with Ms Vatalis first. She was brought up in a loving and caring home. She has two sisters, one of whom is a twin to her. There is nothing in her home life which would explain the problems she has caused to her family, apart from the significant circumstance that she has been sexually abused by extended family members over a number of years. As a psychologist noted, not unexpectedly, she acted out in her high school years with major behavioural problems. She began to be attracted to antisocial activities including fascist ideology and neo-Nazism. She told the psychologist that she was full of hatred and did not know how to express herself. She left school at 16, before she was to be suspended. She says she was bullied at school and had few friends. 15. It is in these circumstances that it is not terribly surprising to learn that Ms Vatalis is one of those whose life has been dominated by illicit drug use and the desire to obtain funds to support that drug use. Although she has been able to get jobs from time to time, she was unable to keep a job because she was using too many drugs. At the demand of one of her past boyfriends, she began to support her drug use through sex work. She has a criminal history, solely referable as I see it to her drug use. This is her first time in prison. She is currently bail refused. She has made attempts at rehabilitation but they have failed. In one case indeed she was granted bail pending resolution of this matter on condition that she go to WHOS but discharged herself without completing the program, thus breaching her bail, and she went back into custody. 16. She is supported in court today by her family. They are willing to have her home again. It is to their great credit that they are prepared to do so despite the enormous pain that she must have caused them in the past. She has a good relationship with her sisters and her parents. I am not under any illusions about the ease with which Ms Vatalis will be able to conduct herself lawfully upon release from custody. We regularly see long term drug addicts with the best of intentions leaving custody and falling back into their drug‑using ways at the first sign of stress or upset. 17. Ms Vatalis has desires for the future. Whether she succeeds or not is entirely up to her. She must know however that if she reoffends, not only will she cause her family even more suffering but she will go back to gaol for longer and longer periods until she is one of those terribly sad offenders, such as one of her co-offenders, who spends such a significant part of her life in custody that it is effectively wasted, missing out on important family events. One such family event which is coming up is the marriage of her sister. It was Mr Hallas's submission that the sentence of imprisonment imposed on Ms Vatalis should be such that she could attend that wedding on 18 July. Ordinarily I would have imposed a sentence which was slightly longer than a sentence which would have allowed such attendance, but given the small difference between the sentence I initially contemplated and a sentence which would allow her to go the wedding, and in acknowledgement of the circumstance that there is no one correct sentence for any particular matter, I have decided to impose a sentence which will allow Ms Vatalis to go this happy event. Whilst there, I want her to consider the possibility that if she offends again there will be many such events she misses out on. 18. In contrast to Ms Vatalis, Mr Pleace's parents separated when he was quite young. Until then his father had been physically abusive towards his mother. As a result of the separation, he and his mother moved from country New South Wales to Ashfield. Mr Pleace told a psychologist that he considers this to be the start of his problems as he was sexually abused at the Ashfield swimming pool at the age of 13. He began misbehaving in a significant way at around that age. Although he started year 7 at Ashfield Boys High School, he only completed that year because he was sent to Rivendell and then to BoysTown. He told a psychologist that he escaped from BoysTown after three days and went to live on the street. He reported that he had a long drug history starting at age 14 when he first experimented with cannabis, and moved quickly to heroin, beginning by experimenting with that drug at 15. That has remained for many years his primary substance abuse. 19. Mr Pleace's psychiatric condition is uncertain. When he was seen by the psychologist he was in an extremely agitated state. He was displaying paranoid behaviour. The psychologist in her report noted that she was unable to verify information provided to her by Mr Pleace despite making a number of attempts to contact a psychiatrist, whom Mr Pleace said he had been seeing, and a general practitioner. Whilst she notes that some aspects of psychosis can be feigned, it is difficult to feign other aspects of the disorder, and so not without qualification she believed that Mr Pleace was suffering from schizophrenia with a medication induced psychotic disorder. Mr Pleace made it clear to his lawyer and indeed to me that he did not wish these sentencing proceedings to be delayed so that further enquiries could be made about his psychiatric condition. Because of that condition, Mr Pleace will do his time in custody much harder than would be the case if he was mentally well, and he becomes a person upon whom it is inappropriate to impose a sentence which contains a significant component of general deterrence. 20. Let me turn now to Mr Gilmore. He is the person I referred to earlier as a person who has suffered greatly from being in custody in recent times because he has suffered a great deal of loss. Like Mr Pleace, he was a child of parents who were in an abusive relationship. His father would abuse alcohol and beat both him and his mother. On occasions Mr Gilmore's mother would attempt to leave his father, but he always managed to find them. Eventually an apprehended violence order caused him to cease coming after them. Not surprisingly in those circumstances, having a mother who was willing to go to such lengths to protect him, he had a close relationship with her and described her as his rock. She was affectionate, supportive and loving, and always there if he needed her. Tragically she passed away a few months ago and not surprisingly he continues to miss her acutely. In addition, his partner has died whilst he was in custody and so has a grandmother with whom he was very close. These are the sorts of events which will occur to people while they are in custody. They are indeed part of the unfortunate but obvious consequential events which will occur when people will commit offences and as a result necessarily be sent to gaol. 21. What led to Mr Gilmore's early brushes with the law at about the age of 11 are difficult to understand given the close affection he had with his mother. Perhaps it was related to his attention deficit and hyperactivity disorder with which he has been diagnosed. In any case, he told the psychologist who saw him that his behaviour as a child was problematic and that at the age of 11, in conjunction with his emerging drug use, he began to engage in criminal behaviour, primarily stealing for financial gain. Despite her best efforts, his mother was unable to enforce rules. In common with the other two offenders, he too was sexually abused as a child. He left home at a very early age, at about 12 or 13, and criminal convictions are recorded from the age of 13. 22. Mr Gilmore has spent a large part of his life in gaol, although there have been times when he has been able to work productively outside gaol. Not surprisingly however, his ability to find work and maintain positions has been affected by his drug use. He was sentenced not so long ago by her Honour Judge Flannery. As part of the sentence she ordered that Mr Gilmore be assessed as to his suitability to enter the compulsory drug treatment correctional centre. He was successful and so did spend a significant period of time receiving such intervention and counselling. He records that he was able to achieve 15 months of abstinence, which is significant for him. Unfortunately however, it is apparent that any gains that were achieved through his time in that program were soon lost. He reoffended only about two and a half months after being released from custody. 23. His late mother wrote a letter in which she expressed her opinion as to why people like her son reoffend. Effectively she blames the lack of counselling facilities for offenders released from gaol. What she writes there of course must to some extent be true, but ultimately the only person who can decide what to do about his drug use is the offender himself. No amount of counselling or supervision or intervention can deter a person who is determined to take drugs from doing so. If Mr Gilmore does wish to avoid further periods of custody then he must understand that he must not use drugs because, as is commonplace, it is largely his drug use which has led to him spending so much time in gaol. 24. It should be noted when describing the attempted break and enter offences that I consider that they display a fairly low level of criminality. It is important to remember that they were just that, attempts, and fairly flimsy ones at that. 25. As far as the assault occasioning actual bodily harm offence is concerned, I note that this took place in the victim's home, that it was not a case where there was a single act of violence but numerous acts of violence, albeit over a fairly short period of time. A guitar was used as a weapon and although neither Mr Gilmore nor Ms Vatalis actually produced the knife, once it was produced they did not immediately desist but remained in the victim's premises whilst he was threatened and struck again. The injuries that the victim suffered were not terribly serious, but of course if they were terribly serious then they would have been grievous bodily harm. It is important therefore not to underestimate the severity of these injuries as they are in the scale which extends from very minor actual bodily harm to something just short of grievous bodily harm. 26. When I sentence Mr Gilmore, I need to give consideration to elements of general deterrence as well as personal deterrence. As is obvious, the deprivation of liberty that accompanied the sentence imposed by Judge Flannery was insufficient to encourage him to give up his life of offending. By that I in no way mean to suggest that her Honour's sentence was inadequate, I merely intend to note that personal deterrence as far as Mr Gilmore is concerned appears thus far to have been ineffective. That of course is not to abandon that principle. He must be reaching the age where a period of reflection will show him how much he has lost by his repeated offending and repeated sentences of imprisonment. Not only must he realise that he has spent time in custody but whilst in custody his mother has died, his partner has died, and his grandmother has died too. It is to be hoped that this will act as a reminder to him of what happens when a person is in gaol, having deliberately committed offences which see him sent there. 27. I was asked to make a finding of special circumstances in his favour. Having abused the leniency shown to him in the past, I would ordinarily make no finding of special circumstances in his favour. However, what has persuaded me to make this finding is the circumstance that this period of custody comes so closely on top of the earlier period of custody imposed by Judge Flannery. Effectively the sentence is much longer than will be imposed merely by me. 28. I have already recorded many of the things I would like to say about Mr Pleace. As my recitation of the facts has noticed, he was not responsible for any direct act of violence but, on the other hand, he did arm himself with a nasty weapon, a knife, and made two threats to the victim whilst armed with it. I will make a finding of special circumstances in his favour based on the disturbing features identified in the psychological report, in particular the suggestion that Mr Pleace has been coasting under the radar, quite possibly presenting with a primary presenting problem of substance abuse which has led to his psychiatric diagnosis not being adequately addressed. 29. I will impose sentences therefore as follows. 30. In Ms Vatalis's case I impose a sentence of imprisonment consisting of a non‑parole period of nine months and 21 days commencing from 19 September 2014 with a head sentence of 19 months. Thus she is to be released to parole on 9 July 2015. 31. In Mr Pleace's case I impose a sentence consisting of a non-parole period of two years to commence on 18 July 2014 with a head sentence of three years and six months. He will be eligible to be released to parole on 17 July 2016. 32. In Mr Gilmore's case I have decided to impose an aggregate sentence of imprisonment consisting of a non-parole period of three years commencing from 10 December 2013 and a head sentence of four years six months. He will become eligible to be released to parole on 19 December 2016. 33. Had I not imposed an aggregate sentence I would have imposed the following sentences of imprisonment. For the offence of assault occasioning actual bodily harm in company a sentence of three years six months, and for the offence of attempt break and enter with intent to steal, taking into account the Form 1 matters, a sentence of one year and six months.