Director of Public Prosecutions v Anderson

[2014] VCC 1346

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01356

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARED ELLIOT ANDERSON

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	10-13 June 2014 (Trial); 19 June 2014 (Plea)
DATE OF SENTENCE:	21 August 2014
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2014] VCC 1346

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Affray – Threat to kill – Extenuating circumstances at time of offending -

Cases Cited:            DPP v Serkan Oksuz [2013] VCC1379

Sentence:Community Corrections Order for 2 years with Special Conditions and 550 hours unpaid community work to be completed over 18 months – Aggregate term 89 days’ imprisonment (time already served) – Sentencing Act 1991 s.6AAA declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.Burnside	Office of Public Prosecutions
For the Defence	Ms K. Churchill	Emma Turnbull Lawyers

HER HONOUR:

1Jared Elliot Anderson you have pleaded guilty to 1 charge of  Affray which has a maximum penalty of five years' imprisonment and two charges of Threat to Kill which has a maximum penalty of ten years' imprisonment. The maximum penalties reflect the seriousness with which these offences are regarded by Parliament.  In the event that a term of imprisonment was to be imposed in respect of the first threat to kill, you would fall to be sentenced as a serious violent offender resulting in a presumption of cumulation in respect of Charge 3.

2In opening this matter, I was told by the learned prosecutor that, as at 8 February 2013, there had been a dispute between you and a Graeme Miller over $90 for a painting job that Mr Miller had done for you.  Graeme Miller had been close friends with you for many years.  His sister, Karlie Miller, had been in a relationship with you and you had a child with her.  His name is Lachlan, and he is aged five.  She also had a daughter who was four, who is not your child.  Sharna Miller was the sister of Karlie and Graeme and she had a three year old son and a nine week old baby at that time.

3In the morning of 8 February, your ex- partner, Karlie Miller, approached you in the Rye Safeway car park. You asked if Graeme Miller was in the car. You then walked toward the car and Karlie Miller asked you to stop.  You told Graeme Miller to get out of the car but he refused, saying that his child was present.  He had a child with his partner, Kyanne Robertson, who was two years old at that time.  Karlie Miller started pushing you back to your car, telling you to get out and not to come near her family, and that there were kids in the car.  

4That evening, during the time that the Millers were having dinner, Graeme Miller received a call from you in which you were being aggressive and issuing threats. It also appears that Mr Miller was issuing threats and was being most provocative toward you, which was evidenced by a number of text messages that Ms Churchill tendered at the plea hearing.  Ms Burnside, for the Crown, properly conceded that there were threats going in each direction, and I cannot speculate in respect of the precise contents of the phone conversation which you had at that time. However, as I observed at the plea hearing, the nature of remarks and threats made by Mr Miller were of a more inflammatory and unpalatable kind than anything you said to him insofar as the text messages were concerned.

5I accept that, at the time you went to his house, you were of the belief that unless you went there, he intended to come to your mother’s house to carry out a ‘run through’, as he put it.  He was the one who nominated his own place for the two of you to sort things out and it was in those circumstances, you attended there, apparently expecting that he and his workmates were to be present.  However, you should never have taken matters into your own hands, Mr Anderson, and, if it did not occur to you that women and children would be present before you attended, this was made clear to you as soon as you arrived.

6When you arrived at Mr Miller’s premises, you retrieved a chainsaw which you had taken with you in order to confront Mr Miller and others you expected to be there.  You started the chainsaw up and started screaming above the noise of it, saying words to the effect of ‘He’s dead the cunt - you’re all dead.’  You were swinging the chainsaw around and were yelling out ‘fucking cunts’.  Sharna Miller, who was still outside with her son, who she had put into the car when she saw you, screamed at you that your kids were there.  However, you sliced open the flyscreen on the door.  This episode gives rise to Charge 1, a charge of Affray.  I understand that, at this time, other members of the household were inside the house.

7Neighbours could hear the chainsaw and heard children screaming.  Karlie Miller took the children to a room at the end of the house and told them to stay there.  Kyanne Robertson went at you with a vacuum tube, striking you with it and you swung at her whilst she did this.  She yelled at you to get away.

8Once Graeme Miller became aware of what was going on, he grabbed a mop, and he and Sharna ran to the front of the house.  As Kyanne Robertson was trying to fend you off with the vacuum tube, you said “I’m going to kill all you cunts.  You’re all dead.  You’re all fucked.’ You were waving the chainsaw around in a threatening manner toward Kyanne Robertson, saying that you would 'chop them up'.  This gives rise to Charge 2, Threat to Kill.

9Graeme Miller went outside and was yelling out ‘Where are you cunt; come at me; you want to come and get me.’  He approached the carport and told you to come and get him.  You backed away from the doorway area of the house with the chainsaw still revving, and you were waving it around, threatening to kill everyone.  This gives rise to Charge 3, Threat to kill.

10You then took off after Graeme Miller, chasing him to a neighbour’s house, with Karlie Miller chasing after you, screaming for you to stop.  Sharna Miller left with the children in her car.  Karlie Miller told a neighbour to call the police and appeared to be hysterical.  She then ran after you and was able to calm you down a little.  You turned off the chainsaw and left.  Graeme Miller then took off after you with the vacuum tube in hand.  Kyanne was extremely fearful for the welfare of all at the house.

11You were arrested on 9 February 2013 at your mother’s home in Rye.  The chainsaw was recovered by police.  You took part in a record of interview and denied calling Graeme Miller on 8 February, saying that Graeme Miller had phoned you that evening and that you had threatened each other.  Subsequently, you said you might have called Mr Miller and that you were angry after receiving these calls.  When asked about the use of the chainsaw, you exercised your right to silence.

12Mr Anderson, I regard the Affray and Threats to Kill as serious examples of these offences in circumstances where you had the immediate means to carry out the threats and in which the spectacle of you wielding a chainsaw, which you deliberately activated, must have been especially terrifying to all concerned.  It is an aggravating feature of your offending that you were prepared to conduct yourself in this way when you were on notice that there were children close by.  In this regard, whilst not entirely clear that the children witnessed what you were doing, they were heard to be screaming when the chainsaw was in use so that, on any view, your actions had led to a situation where the children were clearly frightened.  Fortunately for the victims, and for you, no-one was physically injured in the course of this ordeal.

13Your offending is deserving of a punishment which is just in all of the circumstances;  further, your conduct must be denounced.  Significant weight must be given to general deterrence in a bid to deter others from offending as you have.

14I take into account the relevant parts of the victim impact statements, which were read aloud by Ms Burnside.  Kyanne Robertson speaks of the ongoing anxiety and fear she suffers because of your actions.  They have negatively impacted on many facets of her life, including her plan to have another baby with Graeme Miller.  It has also compelled her move to another area.  She fears that the impact of your conduct will continue for the rest of her life.  Sharna Miller and her family have also endured significant impact because of your actions.  She, too, has relocated in a bid to cope with the trauma caused to her and to her family because of your actions.  These are the very real consequences of your actions, Mr Anderson.

15You have a criminal history of a rather limited nature and which is of limited relevance, as you have no prior convictions for offences of violence.  In May 2010, at the Frankston Magistrates Court, you were convicted and fined an aggregate sum of $3500 in respect of trafficking a commercial quantity of abalone and in respect of other fishery offences.

16In September 2010, you were convicted of exceeding the prescribed concentration of alcohol and driving whilst suspended, for which a partially suspended sentence was imposed and you were fined in respect of driving an unregistered vehicle.  You successfully appealed the partially suspended sentence and received the benefit of a wholly suspended sentence of one month imprisonment, with an operational period of two years.  Judging from the penalty imposed and the lengthy licence disqualification period of 22 months, it would seem that you had a rather high blood alcohol reading in respect of the exceed prescribed concentration of alcohol charge.

17Following your arrest for the matters before me, you spent 89 days in prison, which was the first time you had ever been to gaol.  No doubt, this was a salutary experience for you.  I have factored this in when considering the weight I need give to specific deterrence and your prospects of rehabilitation.

18You are 25 years old and are therefore still a youthful offender, although, you are nearing the end of that categorisation.  You were 24 at the time of the offending.  As a youthful offender, I must do what I can to maximise your chances of rehabilitation, although this does not mean that I ought ignore other relevant sentencing principles and the need to give these appropriate weight.

19I take into account your background:  Your parents separated when you were five years old.  You have a good relationship with your parents, but your natural father has not been the best of role models in the past.  Your mother re-partnered when you were five or six years old, to a Russell Magree, with whom you developed a very close relationship.

20You struggled academically at school as you were impeded by learning difficulties.  As a result, you suffered from low self esteem and self confidence. When you were 14 years old, your mother and Mr Magree allowed you to leave school, to  work as a labourer with Mr Magree in their building business. Subsequently, you asked to undertake a carpentry apprenticeship, under Mr Magree’s supervision.  You worked with him on a daily basis and you became fully qualified as a carpenter and continued to work for the family business.  In 2011, when you were 22 years old, you went to Orpheus Island with Mr Magree to rebuild, after the cyclones had hit.  Tragically, Mr Magree was taken by a shark when he swam out to recover your drifting boat.  It took 24 hours for his body to be found and you had the grim task of identifying him and of telling your mother what had happened, returning home on your own. Your mother gave evidence describing the dreadful impact that Mr Magree’s death had upon you and upon her, which was further exacerbated by the sudden death of her brother (your uncle) less than four months later.  Your uncle had been another strong father figure in your life and the effect of the deaths of these two individuals with whom you were very close, within such a short period of time, was devastating for you and for the family.

21These events led you to an increase in your alcohol and drug intake and you withdrew into yourself, making it difficult for your family to connect with you.

22I have taken into account the character evidence given by your mother, who spoke well of you, describing you as normally very placid and easy going.  She said that you blamed yourself for Mr Magree’s death, that he treated you as his own son and that you were a mess when he died.  You came down with shingles shortly thereafter which she believed was related to the stress you were suffering.  However, she said it was imperative for you to keep the business afloat and to complete the work at Orpheus Island, so at the age of 22, you took over the reigns, with your mother leaving her nursing position to assist.  She said that the work was completed with the business employing indigenous labourers and two other carpenters. 

23Your mother spoke of the volatile relationship that you had had with Karlie Miller, in circumstances where you both had used drugs.  It came to a stage where your mother took out an Intervention Order against Ms Miller.  She described some of Ms Miller’s apparent menacing conduct at around this time.  She also referred to various insults and threats made toward her by Graeme Miller, including malicious taunts about her deceased partner and brother.

24Your mother also described how, on 8 February last year, she had just retrieved the chainsaw from the repair shop and had asked you to put it in the shed.  She has since regretted asking you to perform this task because of the offending which ensued.

25Mrs Anderson also described visiting you regularly, whilst you were in prison, saying that you were very closed-up and appeared to be in shock at being in gaol.

26You have now taken over the role of principal carpenter, or at least that was the position as at the time that your mother gave evidence.   Your mother is the project manager of the business.  The business also employs others, including your brother, Joel.  I was told that at that time you worked at the business on a full time basis, sometimes seven days a week.  She said that you continued to live with her and that this was likely to continue indefinitely.  When cross examined your mother said that on the day of the offences, you seemed ‘OK’ to her and not affected by any substance.  She also said that she did not take drugs and did not approve of them, and was not aware that you were using methamphetamine at around the time of the offending.  She was not aware of drugs being a problem for you.

27In fact, your Counsel indicated that you were using methamphetamine in the week of the offending but that there was no evidence that you had abused drugs on the day of the offending.  I do not sentence you on the basis that you were affected by drugs on the day in question, although I do have suspicions in this regard.  However, I put these to one side.  In any event, you were a methamphetamine user at that time and continued to be so until placed on remand.  I understand that, to this day, you have continued to use cannabis.

28In respect of the offending itself, I have taken into account that it was of relatively short duration, being in the order of two minutes.  Your Counsel also submitted that you had no intention of carrying out the threats.  This might well be so, Mr Anderson, but it would have been cold comfort for the victims.  With a running chainsaw in your hand, these threats were far from empty and your conduct was dangerous.  I have also taken into account that your reaction was not without a fair degree of provocation however.  While this, in no way, justifies your offending, it is relevant to an assessment of your moral culpability, in that the offending could be seen as far worse if it was completely unprovoked.  I also regard the fairly recent tragic events in your own life and the tasteless text messages from Mr Miller, which referred to your mother and your deceased uncle and stepfather, as going some way to explain your severe reaction.

29I take into account the report of Dr Cunningham, psychologist, and accept that he has made an error in respect of his assertion that you continued to use drugs whilst in custody.  I have been provided with a negative drug screen which was conducted shortly after he saw you, which tends to support the submission that you had been abstinent whilst in gaol.  It appears that following Mr Magree’s death, your drug and alcohol intake did increase, but that the last time you used methamphetamine was in the week before you were arrested.

30Considering all the matters that are put before me in relation to your drug use, on balance, I accept that you continue to abstain from methamphetamine, which is something you would be wise to maintain.  I also understand that you lead a quiet life and do not go to the hotel any more.  You continue to use cannabis but, Mr Anderson, you must stop.  It is illegal and it is also detrimental to your mental health.

31I take into account your pleas of guilty, which were entered at a late stage, namely, after a jury was discharged and some discussions ensued.  In saying this, you were facing considerably more serious charges to those to which you now plead guilty.  I factor in that you were willing to enter pleas of guilty to a fairly similar indictment to the one to which you now plead at the committal stage, and that such an offer was renewed prior to trial.  In these circumstances, I have allowed for a discount that is not insignificant.  In pleading guilty, you have saved the witnesses the time and trauma of giving evidence and you have saved the community the time and expense of a trial.  Having said all of this, I have also factored in that the indictment to which you were previously prepared to plead guilty to was not identical to the one now before me.  As to remorse, I am not too convinced that this is heartfelt contrition as to what you have done, rather than feeling sorry for yourself and your predicament.  I do hope that, in time, you will come to a fuller appreciation in this regard.

32In light of your limited criminal history, the salutary experience of remand, the fact that you have no subsequent matters, of your acceptance of responsibility for these offences, of your solid work ethic and family support, of your abstinence from methamphetamine and the character material provided upon the plea hearing, I find that your prospects of rehabilitation are fairly good.  I need place some weight on specific deterrence and protection of the community, however, in my view, not a great deal of weight needs to be placed on either of these factors..

33I have considered the submissions on sentence and the material on sentencing which I have received from the Crown and from your Counsel.  Ms Churchill submitted that, in view of the matters in mitigation in your case and that gaol must only be imposed as a last resort, a sentence which reflected time served in combination with a Community Corrections Order or else a Community Corrections Order alone, would do justice to all relevant sentencing principles.  Ms Burnside said that there was nothing exceptional about your case, which is what there ought be in order to escape a further term of immediate gaol.  She submitted that your offending was so serious that a Community Corrections Order or a Community Corrections Order plus time served was not adequate in your case.  I was referred to the sentencing remarks of the learned Chief Judge of this Court in respect of another case involving a charge of affray, DPP v Serkan Oksuz [2013] VCC1379, where His Honour imposed an immediate term of 12 months with six months non-parole period.  That offender had 60 prior convictions, including a prior matter for affray, and he, in company with others, had charged at another party near a tennis club where a number of adults and children were playing. His associates were wielding what appeared to be baseball bats and he produced a handgun.  He did not have a tragic past as you have had and, all things considered, I do not regard his sentence to be indicative of sentencing practice when it comes to your case.

34Without having formed a concluded view of the matter, I ordered that a detailed Community Corrections Order assessment be conducted, which is now to hand.  You have been assessed as suitable to undergo such an disposition.  The question for me has been whether it is necessary to impose a further gaol term upon you or whether time served is adequate, together with a Community Corrections Order.

35As terrifying and as dreadful as your conduct was, I am not satisfied that, all things considered, a further gaol term is warranted.  There were some rather trying extenuating circumstances operating on you at the time, which had an impact upon you, and in light of my findings in respect of your rehabilitation and in respect of matters in mitigation, I do not see any utility in sending you back to gaol.  In my view, the community and you will be best served by the imposition of a Community Corrections Order, which commences now, rather than after serving a further period of imprisonment.  However, if you were to breach the Community Corrections Order which I am about to impose, for any reason, I would view this most seriously, Mr Anderson, and you would certainly be looking down the barrel of an immediate gaol term.

36In respect of all of the charges you are convicted.

37I intend to sentence to an aggregate term of 89 days' imprisonment, which time has already been served, and I intend to place you on a Community Corrections Order for a period of two years.  Please listen carefully to what is proposed as I cannot impose a Community Corrections Order without your consent.

38As I have said, the Community Corrections Order will run for two years.  The mandatory terms that apply to all Community Correction Orders are:

You must not commit another offence for which you could be imprisoned during the time that the order is in force;

You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

You must report to the Rosebud Community Correctional Service within the next two working days, by 4 pm;

You must let a Community Corrections Officer know, within two clear working days, of you changing your address or job;

You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice (or his or her delegate);

You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).

39The conditions that apply in addition to the mandatory terms are:-

Unpaid community work:  You are to perform 500 hours unpaid community work within the next 18 months;

Supervision:  You must be under the supervision of a Community Corrections Officer for a period of two years.

Treatment and Rehabilitation:  You must undergo assessment and treatment (including testing) for drug abuse or dependency and alcohol abuse or dependency as directed by the Regional Manager.

You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuro-psychological and psychiatric treatment whether it be in a hospital or residential facility or in the community, as directed by the Regional Manager.

You must undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.

40Do you consent to the terms and conditions of the order, Mr Anderson?

41OFFENDER:  Yes.

42HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this Community Corrections Order, then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case, you may well be sentenced to gaol.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.  Do you understand this, Mr Anderson?

43OFFENDER:  Yes.

44HER HONOUR:  Do you maintain your consent to the order?

45OFFENDER:  Yes.

46HER HONOUR:  Therefore, in relation to the charges on the indictment, you are convicted and sentenced to an aggregate term of 89 days' imprisonment and to a Community Corrections Order in the terms and conditions that I have just set out.

47I declare that you have already served 89 days' imprisonment.

48I will ask you to come out of the dock and I will have your Counsel assist you with the signing of the order.

49Thank you, I have signed that order.  I indicate if not for your pleas of guilty, I would have sentenced you to an immediate term of 12 months' imprisonment, with a non-parole period of six months.

50Is there anything further, counsel?

51MS BURNSIDE:  Your Honour, can I query this, in regard to you have imposed an aggregate sentence of imprisonment, there's a provision in s.9 which I will just read, "The court must not impose an aggregate sentence of imprisonment if the offender is a serious offender within the meaning of Part 2 and any of the offences of which the offender is convicted is a relevant offence within the meaning of that Part."

52HER HONOUR:  Because it is an aggregate gaol term, I took the view that it was not a subsequent for the purposes of the serious offender provisions.  Do you know what I am saying?

53MS BURNSIDE:  Yes but I didn't realise - so, even though it's not a subsequent matter, it's still the third matter.  It becomes a serious offender once he is convicted of the other two, doesn't he?

54HER HONOUR:  I understood that if a term of imprisonment were imposed in respect of the first threat to kill, he would fall to be sentenced as a serious violent offender, resulting in a presumption of cumulation in respect of Charge 3, is that correct?

55MS BURNSIDE:  Charge 3, yes.

56HER HONOUR:  Well if it's an aggregate term, are you saying how can I cumulate?  Or you say he should be declared a serious violent offender?

57MS BURNSIDE:  Well, I need a moment to look at it, Your Honour, because my instructing solicitor is suggesting that we cannot impose an aggregate, as such, so it might have to be defined in a different way.  But I am not sure about that, I need to read it properly, Your Honour.

58HER HONOUR:  Very well, I will stand down and have a look at it too.

59MS BURNSIDE:  Yes, Your Honour.

(At a later stage.)

60HER HONOUR:  Yes, Madam Prosecutor.

61MS BURNSIDE:  Your Honour, I'm not making any major objection here but there may be another way of sentencing in the fashion that Your Honour has seen fit and that is to impose - - -

62HER HONOUR:  So you say that I cannot do what I am purporting to do?

63MS BURNSIDE:  It would tend to undermine the provisions under s.9.

64HER HONOUR:  I see.

65MS BURNSIDE:  Whereas the same sentence is achieved if Your Honour were to consider imposing the 89 days for the affray and the Community Corrections Order would be imposed for both Charges 2 and 3.

66HER HONOUR:  Yes, it just seems entirely artificial, I'm afraid.

67MS BURNSIDE:  It does.  As I say, Your Honour, my instructions are that I am not making any major objection because we did get some instructions, however, it's thought that it is important that we draw it to your attention.

68HER HONOUR:  Do you say, then, if I leave things as they are, the sentence is not valid, or what do you say about that?

69MS BURNSIDE:  It's still valid.

70HER HONOUR:  Very well, I might leave it.  Thank you. 

71MS BURNSIDE:  It's just, Your Honour, my instructing solicitor brought it to my attention,

72HER HONOUR:  Yes, I appreciate that.

73MS BURNSIDE:  And I thought there's nothing worse - - -

74HER HONOUR:  I appreciate that and I can see the point but it just seems to be completely artificial where what I want to do is impose a Community Corrections Order and gaol already served for all of the conduct and I can see, on one reading of that provision, how your instructor is quite right to be concerned, but I must say - - -

75MS BURNSIDE:  It's highly technical.

76HER HONOUR:  I don't think it really achieves what I want to achieve.

77MS BURNSIDE:  Yes, Your Honour.

78HER HONOUR:  Thank you, Madam Prosecutor.  Anything to say?

79MS CHURCHILL:  No, Your Honour. 

80HER HONOUR:  Very well, we will leave it at that, thank you.

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