Director of Public Prosecutions v Agnew

[2017] VCC 1241

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
 Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-00875

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH ANTHONY AGNEW

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	1 September 2017
CASE MAY BE CITED AS:	DPP v Agnew
MEDIUM NEUTRAL CITATION:	[2017] VCC 1241

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn
For the Offender	Ms N. Smith

HER HONOUR:

1Leigh Anthony Agnew, you have pleaded guilty before me to three charges of criminal damage, one charge of common law assault and one charge of recklessly causing serious injury.  The maximum penalty for criminal damage is five years' imprisonment.  The maximum penalty for common law assault is five years' imprisonment.  The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.

2You have also pleaded to the summary charge of committing an indictable offence, which charge was uplifted to be heard in these proceedings pursuant to s.45 of the Criminal Procedure Act. The maximum penalty for that charge is three months' imprisonment or 30 penalty units.

3The facts underlying your offending are as follows.  You had been in a relationship with the primary complainant, Stephanie Young, for a few months in 2016, the two of you breaking up on New Year's Eve 2016 after an unreported physical dispute between the two of you and the relationship had been quite volatile.

4Sometime between three and 4 pm on 4 January 2017 Ms Young walked around to visit you and another friend, Peter Harrison.  There were a number of people present.  She stayed for about an hour and a half before leaving as you were getting drunk.  She met her mother and her brother, Hayden, and then took her three year old daughter home to her house.

5Ms Young then walked around to Sheville Grove to visit another friend, Darryl Harris, and his wife.  At the time Tahlia Harris, Darryl Harris' wife, Sharon Moresh, was visiting from Western Australia and her 2008 blue Commodore was parked in the front of the property.  Around dusk Ms Young was in the backyard of the Harris property when she heard you yelling abuse from Sheville Grove.

6She walked up to the back gate and saw you holding an iron bar.  It was clear at that stage that you were drunk.  You apparently did not know Ms Young would be at the Harris property and you became aggressive saying you were going to smash all the persons present at the house, and you walked towards Ms Young swinging the iron bar at the fence and back gate, causing a hole in the corrugated back gate.  Those actions underlie Charge 1 on the indictment, criminal damage.

7You tried to hit Ms Young with the iron bar but she avoided you and grabbed a brick and threw it at you in an attempt to keep you away from her.  The brick missed and she told you she was going to ring the police.  You told her to and then used the iron bar to hit the boot and rear of a silver coloured 2000 Holden Commodore parked in the backyard, causing a dent to both panels.

8This car belonged to a friend, Aaron Williams, who had been at the house earlier in the day but was not present.  Those actions underlie Charge 2 on the indictment, criminal damage.  You and Ms Young continued to yell at each other, you calling her a "dirty black moll, a slut" and other offensive names.

9Ms Harris then rang the police.  You left the house but in doing so used the iron bar to hit the rear spoiler of Ms Moresh's blue Commodore.  Those actions underlie Charge 3 on the indictment, criminal damage.  You walked back to the unit where you had been living in nearby Wanstead Street.  Ms Young went back into the house to apologise for your behaviour but was told to leave.

10To go home she had to walk past your unit and being too scared to do this rang her brother, Hayden, who went to the corner of Wanstead Street and Sheville Grove and met his sister.  As the two of them walked past your unit you saw them and yelled out to Ms Young.

11You then jumped over the fence and ran at both Ms Young and her brother holding a pair of scissors.  You swung a punch at Hayden Young with the hand holding the scissors and connected with his back.  Mr Young later discovered he had a small wound comprising broken skin on the back.  Your actions in hitting Mr Young that way underlie Charge 4 on the indictment, common law assault.

12You then ran after Ms Young and struck her several times to the back with the pair of scissors.  Ms Young felt sharp pain but thought she had only been punched.  She and her brother ran away and you continued chasing her down the street, yelling, "Have fun sleeping tonight.  I'm going to burn your house down."

13Ms Young told you to stay away from you and her daughter.  You replied, "I don't care, I'll do it with both of you in there and I'll kill you both."  Ms Young dropped her bag and belongings and when she stopped to collect them her brother, Hayden, called out to you to leave his sister and then you caught up with Ms Young and stabbed her with the scissors to the top of her left hand causing instant bleeding.

14These actions and the actions in stabbing Ms Agnew in the back, together comprise Charge 5 on the indictment, recklessly causing serious injury.  At that point you headed back to the unit.  Ms Young became short of breath and was helped home, at which time her mother rang an ambulance.

15She was taken to South West Healthcare and an urgent X-ray confirmed a collapsed lung.  A tube was placed in her chest to drain the lung and she was then admitted to hospital under the care of surgeons and had suctions applied to her chest drain tube.  She had a daily chest X-tray to monitor for re-inflation of the lung and had antibiotics and pain relief.

16Her injuries included a one centimetre incision or cut to the left of the midline of her back level to her shoulder blade which was likely to have caused the collapsed lung.  She had a two centimetre incision over the back of her left hand.  She had superficial abrasions on the left forearm, left flank and behind her left armpit, and an X-ray revealed a fracture to the bone in the left hand consistent with blunt force trauma to the left hand, that is consistent with the damage, the stabbing that you inflicted on her left hand.  She was ultimately discharged from hospital with a referral to a plastic surgical unit to further assess the fracture to her hand.  You were arrested by police and held in custody overnight.

17You told police in an interview on 5 January 2017 that you had been drinking wine and port since 10 am the day before and could not remember anything.  At the end of the interview you did say you hoped Ms Young would be okay.

18On 29 November 2016 you had been bailed on charges of intentionally causing injury, recklessly causing injury, assault with a weapon and fail to answer bail.  These were in relation to an unrelated complainant.  You were bailed to appear at the Warrnambool Magistrates' Court on 16 January 2017, so the offending before this court comprised a breach of bail and the charge of committing an indictable offence whilst on bail.

19Those matters have not yet been dealt with and are listed in the Magistrates' Court today. 

20MS SMITH:  Yes, Your Honour.

21Those charges comprise a situation where on 26 August 2016 you stole a bottle of alcohol and on 29 November 2016 you hit another male with a stick.  As I have said, they are unrelated to the current offending and will be dealt with by the Magistrates' Court here following resolution of this matter.

22I now turn to your personal circumstances.  You are now 31 years of age. 

23Your mother is a Gunditjmara woman and your father was of Irish extraction.  You are the middle of three children born to them.  Your early years were marked by considerable depravation.  Both your mother and father were alcoholic.  They fought each other and they were violent towards the children, including yourself.

24You attended large numbers of schools, your parents separating when you were seven to eight, but living in Ballarat and Hamilton respectively, and until the age of 14 you travelled regularly between them which very much disrupted your education.  At the same time unfortunately both your parents continued with their various substance abuse difficulties which affected their capacity to parent either of you properly.

25You have an older brother and younger sister who have both attended in court to support you, as well as your mother who 14 years ago gave up alcohol and four years ago gave up cannabis and has been described as a very important prop in your life.

26Unsurprisingly, given your very difficult background, this has manifested itself in you becoming, if you like, a slave to substance abuse from about the age of 12 when you began using alcohol.  A couple of years later you started using cannabis and then you moved to the injection of speed, the use of illicit prescription drugs, and finally became involved in the use of methamphetamine.

27Again, unsurprisingly, as a result of these multiple substance abuse issues, you began offending and you have a horrendously long criminal record which dates back to 2003 and you have appeared in court almost every year since then on offences of violence and offences of dishonesty, including burglary and theft.

28You have been dealt with on numerous occasions for driving offences, including drink driving.  You have been dealt with for using an unregistered vehicle.  You have been placed on suspended sentences, community based orders, community corrections orders and an intensive corrections order, all of which you have breached.

29You have had very little in the way of permanent work.  You have had some casual work over the years as fruit picking, as shearer/roustabout, but nothing of any great consequence.  You have also had several relationships involving the birth of five children by three different women, the eldest of them being your 15 year old daughter, and none of whom with whom you have any contact.

30The only positive sign in your life in recent times appears to have been the fact that for a period of about 19 months following your last release from prison you lived with your mother.  You, she and your brother engaged in a course, a healthcare course, South West Aboriginal and Torres Straight Islanders Primary Healthcare course.  This was probably, it would seem, from what your counsel has told me, the most productive thing that you have done for many years.  It appears that you have not injected any drugs since, as I am told, April of 2016 and you ceased use of methamphetamine, which is to your credit.

31Unfortunately however you continued with use of alcohol. I note that having looked at your priors, (and they are so numerous), none of them involve charges around drug use.  It seems to me if anything alcohol is the feature in so far as your prior criminal history is concerned, particularly around driving.  You have been dealt with many times for drink driving.

32I am informed that about a month prior to this offending you were contacted by your eldest daughter, Kiara.  It appears she was making some preliminary attempts to set up a relationship with you, but her mother, Belinda, intervened and put a stop to this, and this caused you great distress.

33I understand it caused great distress and your way of coping with it was to turn to alcohol and illicit prescription drugs in even greater frequency and intensity than you had previously.  This does not go anywhere near to excusing the extraordinarily serious offending that you engaged in.  It serves as no more than an explanation.

34Unfortunately however if you are going to spend your life going around having children by various women whom you then do not support because of your own substance abuse issues, this is likely to happen again.  It is perfectly natural for children to want to make contact with an unknown father, but the mother who may have experienced severe difficulties in a relationship with you is going to be very concerned about that child or children having contact with a father whom they would regard as unstable to say the least, and suffering from extreme substance abuse problems.

35Your counsel informed me that over the years you have abused alcohol, cannabis and methamphetamine, as I have said, but most seriously you have engaged in illicit use of Seroquel, which is a very serious and very heavy drug, primarily used for very difficult mental illnesses, and Xanax, which over the years the court have come to recognise is used on a widespread basis as a come down agent for those engaging in the use of amphetamine based drugs, which can prevent sleep, but which excessive use of, in the experience of the courts, in combination with other drugs such as alcohol, seems to result in a type of disinhibition often leading to violence.

36Certainly on the day in question I am told by your client that you had drunk a huge amount of alcohol and combined that with the use of an unknown number of Xanax tablets.  This would explain when you were interviewed by police your complete lack recollection of the offending in which you had engaged.

37I received a report from a respected and experienced psychologist, Pamela Matthews, and I do accept her opinion that you are extremely remorseful for your offending.  She noted that you have not completed any extensive rehabilitation over the years and this has not been for want of trying by the courts, Mr Agnew.  You have been given many opportunities to undertake community correction orders, community based orders and intensive corrections orders, all with rehabilitative conditions attached to them.  For some reason you have not been able to complete these or to take advantage of them.

38You now unfortunately are in a position where you face the most serious offending you have ever engaged in.  Again, as I have said, you have appeared before the courts on many occasions for violent behaviour, and you do have a prior conviction for recklessly causing serious injury when you were much younger.

39You have also appeared before the courts on numerous occasions for unlawful assaults, common law assaults, for conduct endangering injury and the like.  This was extraordinarily dangerous behaviour.  You are extremely fortunate that you are not appearing before the courts as could so easily have happened, on charges relating possibly to the death of Ms Young.

40There is no excuse for the behaviour.  I take into account the fact that you were under the effect of alcohol and drugs, but in some ways that makes it worse, if you like.  It appears that you are engaging in extremely serious behaviour whilst affected in that way.  That means I have to be concerned about protection of the community when it comes to sentencing you.

41You have been in custody for some time now.  You have been removed finally to Marngoneet where to your credit you are working as a billet which is a position of trust.  You are an education billet but you are a remand prisoner who has little access to rehabilitative or educative programs, and it is to be hoped you will remain at Marngoneet and be able to take advantage of the programs there which are far more extensive than at other prisons.

42It was submitted to me by the prosecution that the main principles I have to have regard to - sorry, to use legal language, I do have to use it, but I want you to understand that it is no so much looking at rehabilitation.  I do not find that you are a person who has no rehabilitative prospects.

43Clearly gaol has proved a useful detox centre for you.  Clearly you have got a family ready to stand by you and to help you when you get out and I do accept that you had been doing pretty well for a while in the education program that you had undertaken with your mother and your brother and I heard what your counsel had to say about your mother's instructions about how enthusiastic you became involving in household activities. I accept that this was probably a very stable time in your life and probably the longest period of stability you had had for some time, probably very healing for you in one sense in that you were living with family, living in a stable way.

44Your fatal mistake was not giving away alcohol, not giving away all your drugs.  No doubt you came out of gaol last time determined not to go back to gaol again.  Am I right?  So that was what led you to take the very positive steps that you did.  However, as I have said, your fatal mistake was not giving away all drugs.

45The only explanation, and the only reason I am harping on this, Mr Agnew, is that you have to understand why you behaved in this dreadful way.  I have no doubt that you are extremely remorseful for your offending, as I have said, but you have to understand it rose in my opinion directly out of your abuse of alcohol and of Xanax.

46Each of them is a dangerous substance in its own right. When combined the danger in my view triples.  As I said, your failure to attend to this is the whole reason you are here today facing the most serious charge you ever have.  Again, you have good family.  Your sister has never engaged in substance abuse.

47Your mother has straightened her life out and turned into a pillar of support.  It is not easy and you must realise seeing your mother sitting here distressed today knowing that her boy is going to go to gaol for the longest time he ever has, just when everything seemed to be coming good, just when things seemed to have improved, just when it seemed as if a stable and productive life had been established.  Is that right, Ms Agnew?

48You really thought he had come good this time, did you not?  Hope never dies, all right?  At least this time for what it is worth the alcohol and Xanax are going to have to be dealt with.  They have to go, they absolutely have to go.  I need you to sit down, sir, because I need - that is okay, I understand what you are seeking to do but I am addressing my comments to your brother and you are just a bit in the way.

49I have great sympathy for your situation.  I seem to spend this whole circuit saying I have got enormous sympathy and then gaoling people, but you know, I can simply understand, very much understand just when you thought things were coming good he is in the worst trouble he has ever been in.  Hopefully it is the last time, Mr Agnew.

50In sentencing I do take into account that as an indigenous person you suffered an extremely deprived, dysfunctional, abusive and difficult childhood which has very much underlain the development of the very serious substance abuse, polysubstance abuse disorders that you have developed over the years.

51I do take into account your early plea of guilty.  I accept that that plea of guilty has also not only saved the community the time and expense of a trial, the complainant the trauma of giving evidence and undergoing cross-examination, but is also a true expression of remorse on your part.

52I accept that you have made positive steps in gaol towards your rehabilitation.  At the end of the day however the offending is so very serious that I have no option but to sentence you to a term of imprisonment and unfortunately it is going to be a term of imprisonment longer than one you have ever experienced before.

53In some ways, as I have said, I hope you remain at Marngoneet.  I will forward my sentencing remarks to the gaol and to the Parole Board.  If it is not Marngoneet I hope it is Dhurringile where there are fairly good indigenous support programs in place.

54Certainly to some extent from my observation your offending has shocked you and I hope that is so because you can see how far you can go when you are abusing alcohol and Xanax in the way you did on this occasion.

55I therefore sentence you as follows.  Could you stand up please, sir?  On Charge 1 you are sentenced to two months' imprisonment.  On Charge 2 you are sentenced to four months' imprisonment.  On Charge 3 you are sentenced to four months' imprisonment.  On Charge 4 you are sentenced to nine months' imprisonment.  On Charge 5 you are sentenced to five years' imprisonment.

56On the summary charge and indictable offence on bail you are sentenced to one month imprisonment.  The charge imposed on Charge 5, five years, will be the base charge.  I order that three months of the sentence imposed on Charge 4 be served cumulatively to the charge imposed on Charge 5.

57I order that two months of each of the charges imposed on Charges 2 and 3 be served cumulative to the sentence imposed on Charge 5 and all other sentences.  That gives a total effective sentence of five years and seven months.

58I order that you serve a minimum term of three years and six months before becoming eligible for parole. 

59So I have given a lesser than normal minimum term.  Ms Smith is going to be a bit busy.  After she has finished she needs to explain to you - you are going to have to apply to get parole.  If you get parole you are going to have just over two years hanging over your head that you will owe the Parole Board.

60If you offend whilst on parole by further offending any sentence you get for that offending has to be served on top of the two years you would owe the Parole Board.  It is a really serious matter to breach parole.  So I am giving you an opportunity because of the lowish minimum term I have given you, but you need to work pretty hard while you are in gaol.

61Pursuant to s.6AAA I declare had you not pleaded guilty I would have sentenced you to a maximum term of six years and six months and order you serve a minimum term of four years and six months.  PSD?

62MS FLYNN:  241.

63HER HONOUR:  I declare that 241 days of this sentence have already been served by way of pre-sentence detention.

64MS FLYNN:  Orders, Your Honour.

65HER HONOUR:  I also order that you pay compensation of $480 to Leigh Anthony Agnew.

66MS FLYNN:  I think it is to Sharon Moresh, Your Honour.

67HER HONOUR:  I also order that you pay $480 to Sharon Lee Moresh.  I will sign that.

68MS FLYNN:  Thank you, Your Honour.

69HER HONOUR:  You can have a seat, thank you, sir, sorry.  There is a disposal order as well.

70MS FLYNN:  Thank you, Your Honour.

71HER HONOUR:  I note that whilst the complainant, Ms Young, declined to make a victim impact statement she told police of the distress and pain accompanying her injury when making her statement and I accept that as being an appropriate complaint in the circumstances.  Thank you.  Is there anything else I need to do?

72MS FLYNN:  No, Your Honour.

73MS SMITH:  No, Your Honour.

74HER HONOUR:  Good luck, Mr Agnew.  Thank you very much.

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